[2006] KEHC 3292 (KLR)
The court found that the defendant's application for dismissal under Order 16, rule 5 (d) was misconceived because the suit was not adjourned generally on 18th September 2002. On that date, the only matter before the court was the plaintiff's advocate's application to cease acting, which was granted. No order was...
Source-derived case information.
- Citation
- [2006] KEHC 3292 (KLR)
- Parties
- Plaintiff: Ngotho Wathome and Company Limited; Defendant: American Life Insurance Company (K) Ltd
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 185 of 2002
- Procedural Posture
- Civil Case / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- application dismissed
- Judges
- DW Mbuteti
- Legal Topics
- Dismissal for Want of Prosecution, Adjournment of Suit, Failure to Prosecute, Application of Civil Procedure Rules
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Ngotho Wathome and Company Limited
Plaintiff
American Life Insurance Company (K) Ltd
Defendant
Procedural Posture
Civil Case / Ruling on Application for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the defendant's application for dismissal of the suit for want of prosecution under Order 16, rule 5 (d) of the Civil Procedure Rules is properly grounded.
- 2 Whether the circumstances of the case meet the requirements for dismissal under Order 16, rule 5 (d) or rule 6 of the Civil Procedure Rules.
Ratio Decidendi
The court found that the defendant's application for dismissal under Order 16, rule 5 (d) was misconceived because the suit was not adjourned generally on 18th September 2002. On that date, the only matter before the court was the plaintiff's advocate's application to cease acting, which was granted. No order was made adjourning the suit generally, and the suit itself was not set for hearing. Therefore, the requirements of Order 16, rule 5 (d) were not met. The court noted that the appropriate provision for dismissal in the circumstances would have been Order 16, rule 6, which addresses situations where no step has been taken for three years. As a result, the application was dismissed as...
Court Disposition
application dismissed
Orders
- The defendant's application for dismissal of the suit for want of prosecution is dismissed.
- There is no order as to costs.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (MILIMANI COMMERCIAL COURTS)
Civil Case 185 of 2002
NGOTHO WATHOME AND COMPANY LIMITED ….........………………. PLAINTIIFF
VERSUS
AMERICAN LIFE INSURANCE COMPANY (K) LT………....……....... DEFENDANT
R U L I N G
This is an application by the Defendant (amended notice of motion dated 31st October 2005) for dismissal of the Plaintiff’s suit for want of prosecution under Order 16, rule 5 (d) of the Civil Procedure Rules. Under that rule, if within 3 months after the adjournment of the suit generally the plaintiff, or the court of its own motion on notice to the parties, does not set down the suit for hearing, the defendant may either set the suit down for hearing or apply for its dismissal.
The Plaintiff was duly served with the application and hearing notice. He did not file any grounds of opposition or replying affidavit. Nor was there appearance for him at the hearing of the application.
Mr. Imende, learned counsel for the Defendant, submitted that the suit was last before a Judge on 18th September 2002, when it was adjourned generally, and that the Plaintiff has since then not taken any steps to fix it for hearing. The court record shows that on 18th September 2002 what came up for hearing was chamber summons dated 25th June 2002 by which the Plaintiff’s advocate sought leave to cease acting for the Plaintiff. Leave was granted as prayed. No order was entered adjourning the suit generally as the suit itself was not coming up for hearing on that date. It is therefore apparent that the present application is misconceived. I think what the Defendant should have sought is an order for dismissal under rule 6 of Order 16. That rule provides –
“In any case not otherwise provided for in which no application is made or step taken for a period of three years by either party with a view to proceeding with the suit, the court may order the suit to be dismissed; and in such case the plaintiff may, subject to the law of limitation, bring a fresh suit.”
In the result I must refuse this application. It is hereby dismissed with no order as to costs. Order accordingly.
DATED AND SIGNED AT NAIROBI THIS 7TH DAY OF FEBRUARY, 2006.
H.P.G. WAWERU
JUDGE
DELIVERED THIS 10TH DAY OF FEBRUARY, 2006.