[2012] KEHC 4849 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

MILIMANI LAW COURTS

LAND AND ENVIRONMENTAL DIVISION

ELC CIVIL SUIT NO. 441 OF 2008

NEW KENYA CO-OPERATIVE CREAMERIES LTD ………..…...……………………..…..……PLAINTIFF

VERSUS

CITY COUNCIL OF NAIROBI……….........................................................…..................1ST DEFENDANT

GODKA ENTERPRISES ……………...................................................…………….……2ND DEFENDANT

TOTAL KENYA LIMITED …………..................................................……………………3RD DEFENDANT

RULING

The 3rd Defendant’s application dated 18th August 2011 is brought under Order 17 rule 2 (1) and(3) and Order 51 (1) of the revised Civil Procedure Rules, as well as section 3A of the Civil Procedure Act, and is seeking dismissal of the Plaintiff’s suit for want of prosecution. The grounds for the application are that no application has been made or step taken by the Plaintiff for a period exceeding one (1) year, and that it is apparent that the Plaintiff is no longer interested in this suit and the same only remains as an unnecessary burden to the 3rd Defendant.

Both the 3rd Defendant’s Advocate in her Supporting Affidavit sworn on 18th August 2011, and the Plaintiff’s Advocate in his Replying Affidavit sworn on 25th November 2011, have given detailed accounts of the steps taken by the respective parties since the filing of the suit herein on 11th September 2008 by way of Plaint. The Advocates also reiterated their respective arguments at the hearing of the application on 28th February 2012.

I have read and carefully considered the pleadings and submissions made by the parties to this application. Both Parties agree that the last step taken in the suit was by the Plaintiff on 28th June, 2011, when the Plaintiffs Advocates filed a notice of withdrawal of their application dated 11th September 2008. The 3rd Defendant argues thatthis does not qualify as a step in the proceedings, and that it is clear that the Plaintiff is no longer interested in pursuing this suit as demonstrated by his failure to take my step to set down the suit for hearing.

The Plaintiff on the other hand argues that the 3rd Defendant’sapplication is premature, misconceived, incompetent and an abuse of the court process, since one year has not lapsed since the Notice of Withdrawal dated 28th June, 2011 was filed and served upon the parties including the 3rd Defendant. Further, that the 3rd Defendant acknowledged receipt by stamping othe Plaintiff’s copy on 5th July, 2011, and the Plaintiff has annexed as evidence a copy of the said Notice of Withdrawal containing the 3rd Defendants Advocates stamp. The Plaintiff’s Advocate avers thatthe Plaintiff’s applicationdated 11th September, 2007was withdrawn as it had been overtaken by events, andto pave way for hearing of the main suit.

The main issue to be decided is whetherthe filing and serving of a Notice of Withdrawal is a step taken within the meaning of Order 17 rule 2 of the Civil Procedure Rules. The step envisaged in the Civil Procedure Rules is a step taken on the record, as was held in Victory Construction v Duggal (1962) EA 697. The filing of the Notice of Withdrawal is clearly reflected on the court record having been entered on 30th June 2011, and the same was indeed filed on the same date. The said filing therefore suffices as a step for purposes ofOrder17 Rule 2 of the Civil Procedure Rules. It is therefore the finding of this court that the test of one year delay under order 17 Rule 2(1) of the Civil Procedure Rules has not been met, and the 3rd Defendants application dated 18th August 2011 fails for this reason. The Plaintiff shall however set this suit down for hearing within 90 days of the date of this Ruling.

The costs of the application shall be borne by the 3rd Defendant.

Orders accordingly.

Dated, signed and delivered in open court at Nairobi this ____25th_____ day of ____April_____, 2012.

P. NYAMWEYA

JUDGE