[2012] KEHC 1215 (KLR)
The court found that the dismissal order of 8/4/2008 was irregular because there was no evidence that the plaintiff/applicant was given notice to show cause as required by the Civil Procedure Rules. The file was placed before the judge without proper notice to the plaintiff, and the order for dismissal was made...
Source-derived case information.
- Citation
- [2012] KEHC 1215 (KLR)
- Parties
- Plaintiff: Ngecha New Farmers Co-operative Society Ltd; Defendant: County Council of Nakuru
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Case 439 of 1996
- Procedural Posture
- Civil Case / Ruling on Application to Set Aside Dismissal for Want of Prosecution
- Outcome
- Application to set aside dismissal order allowed; dismissal order set aside; suit to be set down for hearing within 90 days or stand dismissed; applicant to bear costs.
- Judges
- RPV Wendoh
- Legal Topics
- Dismissal for Want of Prosecution, Setting Aside Orders, Notice to Show Cause, Court Procedure Irregularity
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ngecha New Farmers Co-operative Society Ltd
Plaintiff
County Council of Nakuru
Defendant
Procedural Posture
Civil Case / Ruling on Application to Set Aside Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the dismissal of the suit for want of prosecution was regular and in accordance with the Civil Procedure Rules.
- 2 Whether the plaintiff/applicant was entitled to have the dismissal order set aside.
Ratio Decidendi
The court found that the dismissal order of 8/4/2008 was irregular because there was no evidence that the plaintiff/applicant was given notice to show cause as required by the Civil Procedure Rules. The file was placed before the judge without proper notice to the plaintiff, and the order for dismissal was made through an oversight. Although the plaintiff had been indolent in prosecuting the case, procedural fairness required that notice be given before dismissal. Therefore, the order of dismissal was set aside in the interest of justice, with directions for the plaintiff to prepare the case for hearing within 90 days, failing which the suit would stand dismissed. The applicant was...
Court Disposition
Application to set aside dismissal order allowed; dismissal order set aside; suit to be set down for hearing within 90 days or stand dismissed; applicant to bear costs.
Orders
- The order of dismissal dated 8/4/2008 is set aside.
- The plaintiff is directed to prepare the case for hearing to be set down within 90 days.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
High Court at Nakuru
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NGECHA NEW FARMERS CO-OPERATIVE SOCIETY LTD……PLAINTIFF/APPLICANT
VERSUS
COUNTY COUNCIL OF NAKURU............................................DEFENDANT/RESPONDENT
RULING
This suit was filed way back in 1996. On 8/4/2008, one Oyuo acting for the defendant appeared before J. Maraga and indicated that the plaintiff was absent and asked the court to dismiss the suit with costs. The court went ahead to dismiss the case for reasons that there was nothing on record to show that the plaintiff had been serious in prosecuting the case and it was dismissed for want of prosecution.
The plaintiff/applicant has now filed the application dated 10/8/2011 seeking the setting aside of the dismissal order of 8/4/2008 for reasons that the said order was granted irregularly as the date was not fixed by either of the parties nor was any notice issued to the plaintiff/applicant to attend the court to show cause why the suit should not be dismissed. Mr. Ngure urged that the defendant/respondent did not file any affidavit of service for that date and it was not known why the matter came up on that date and that the applicant is keen on prosecuting the suit. The plaintiff only became aware of the dismissal order in July 2011.
The application was opposed. Joseph Ndunda, County Clerk of the defendant deponed that the suit was dismissed procedurally; that this application lacks merit because there had been inordinate delay in prosecuting the suit and that the plaintiff/applicant was not vigilant in prosecuting the suit.
I have thoroughly perused the court file. Before the dismissal order was made on 8/4/2008, the last order on record is dated 5/4/2002 when the application dated 18/1/2002 was allowed. By that application, Kagucia & Co. Advocates were allowed to cease acting for the plaintiff. Thereafter, there was nothing else on record. It is unclear how the file came to be before the judge on 8/4/08. There is no evidence that the defence counsel had taken a hearing or a mention date and invited the plaintiff for mention or that the court had the court issued a notice to show cause under Order XVI Rule (2) now Order 17of the Civil Procedure Rules which provides that if no step has been taken in the case by either party for one year, the court may give notice in writing to the parties to show cause why it should not be dismissed. No such notice was issued by the court. The only conclusion this court can make is that the file was irregularly placed before the judge without notice to the plaintiff and through an oversight on the part of the court, the order for dismissal was made. It is true that the plaintiff has been indolent in the prosecution of this case in that until 2008, when it was dismissed, no steps had been taken in the case for about 6 years. Even after the dismissal in 2008, it seems the plaintiff had gone to slumber. If the plaintiff had been keen to prosecute this case, it should have enquired with the court on what was happening to its case.
Having said that, two wrongs cannot make a right. The dismissal order was irregular as the plaintiff had no notice of the date hen it was dismissed and the same cannot be sustained. It is in the interest of justice that the order of 8. 4.2008 be set aside and it is hereby set aside. I direct that the plaintiff do prepare the case for hearing to be set down for hearing within 90 days hereof. In default, the suit will stand dismissed. The applicant bear costs of this application.
DATED and DELIVERED this 9th day of November, 2012.
R.P.V. WENDOH
JUDGE
PRESENT:
Mr. Ngure for the plaintiff/applicant
Mr. Orege for the defendant/respondent
Kennedy – Court Clerk