[2021] KEHC 8927 (KLR)
The court found that before determining the application for dismissal for want of prosecution, it must first address the issue of jurisdiction, which was raised in the grounds of opposition to the plaintiff's application filed on 25th November, 2010. The court observed that there was no evidence that summons to...
Source-derived case information.
- Citation
- [2021] KEHC 8927 (KLR)
- Parties
- Plaintiff: New Four Star Plus Limited; Defendant: Kenya Railways Corporation
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 575 of 2020
- Procedural Posture
- Civil Suit / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- No ruling on the application for dismissal; directions to be given to parties; no order as to costs.
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Dismissal for Want of Prosecution, Jurisdiction of Court, Environment and Land Court Act, Service of Summons
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
New Four Star Plus Limited
Plaintiff
Kenya Railways Corporation
Defendant
Procedural Posture
Civil Suit / Ruling on Application for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the suit should be dismissed for want of prosecution.
- 2 Whether the court has jurisdiction to hear and determine the suit in light of the Environment and Land Court Act.
- 3 Whether summons to enter appearance were served on the defendant.
Ratio Decidendi
The court found that before determining the application for dismissal for want of prosecution, it must first address the issue of jurisdiction, which was raised in the grounds of opposition to the plaintiff's application filed on 25th November, 2010. The court observed that there was no evidence that summons to enter appearance had been served on the defendant and that no defence had been filed. The court further noted that the jurisdictional challenge had not been addressed in any prior ruling. In light of the coming into effect of the Environment and Land Court Act, the court held that it was necessary to determine whether it had jurisdiction to hear the suit before considering the...
Court Disposition
No ruling on the application for dismissal; directions to be given to parties; no order as to costs.
Orders
- No ruling is made on the application dated 21st January, 2019.
- The court shall give directions to both parties on the way forward.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL SUIT NO. 575 OF 2010
NEW FOUR STAR PLUS LIMITED..............PLAINTIFF/RESPONDENT
VERSUS
KENYA RAILWAYS CORPORATION........DEFENDANT/APPLICANT
RULING
This is an application dated 21st January, 2019 by way of Notice of Motion under Order 17 Rule 2 (3) and Order 51 Rule 1 of the Civil Procedure Rules, Sections 1A,1B and 3A of thr Civil Procedure Act, seeking an order that the plaintiff’s suit against the defendant be dismissed for want of prosecution, and costs be borne by the plaintiff. It is supported by grounds set out on the face of the application and the supporting affidavit sworn by Rubeena Dar Advocate for the defendant.
The application is opposed and there is a replying affidavit sworn by K.S. Bhullar the Advocate for the plaintiff. This is not the first application seeking the same order. From the record, there is an application dated 12th March 2014 seeking the same orders, but was dismissed in a ruling dated 6th May,2015 with some conditions attached thereto.
Parties have filed submissions relating to the present application. Upon going through the record before me however, I have observed the following. There is no evidence summons to enter appearance have ever been served upon the defendant. There is no defence filed on behalf of the defendant. What there is, is a plaint and an injunction application both filed on 25th November, 2010. In the grounds of opposition to the application dated 25th November, 2020 the defendant stated that this court has no jurisdiction to hear or entertain the suit and should struck out with costs. I believe that may be the reason why no defence was filed.
Be that as it may, there appears to have been no ruling made by the court to address that application and this escaped the notice of the court when dealing with the earlier application dated12th May 2014. I am of the view that before the present application dated 21st January, 2019 is determined, a ruling has to be made based on the application by the plaintiff filed on 25th November, 2010. This is because it is that application that prompted the filing of the grounds of opposition challenging the jurisdiction of this court.
Parties therefore must agree on the way forward but above all, in addition to the grounds of opposition, whether this court has jurisdiction in view of the pleadings and the coming into effect of the Environment and Land Court Act No. 19 of 2011.
For the reasons above, I have decided not to write any ruling in respect of the application dated 21st January, 2019 and the court shall proceed to give directions to both parties on the way forward. No order as to costs.
Dated and delivered at Nairobi this 25th day of February, 2021.
A.MBOGHOLI MSAGHA
JUDGE