[2009] KEHC 1266 (KLR)
The court found that the application to set aside the dismissal was adequately explained by the applicant, who was not informed of the suit's progress due to the previous advocate's illness and abandonment of practice. There was no evidence to the contrary. The court accepted the explanation and allowed the...
Source-derived case information.
- Citation
- [2009] KEHC 1266 (KLR)
- Parties
- Plaintiff: Njogu Maregwa; Defendant: Magu Rutere & Four Others; Plaintiff: Second Plaintiff (deceased)
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 1368 of 1999
- Procedural Posture
- Civil Case / Ruling on Preliminary Objection and Application to Set Aside Dismissal
- Outcome
- Application allowed; suit reinstated for surviving plaintiff; suit abated for second plaintiff.
- Legal Topics
- Reinstatement of Suit, Dismissal for Want of Prosecution, Locus Standi of Advocate
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Njogu Maregwa
Plaintiff
Magu Rutere & Four Others
Defendant
Second Plaintiff (deceased)
Plaintiff
Procedural Posture
Civil Case / Ruling on Preliminary Objection and Application to Set Aside Dismissal
Legal Issues
- 1 Whether the application to set aside the dismissal of the suit is properly before the court.
- 2 Whether the firm of Kanyi Advocates had locus standi to file the application.
- 3 Whether the suit by the second plaintiff has abated due to his death.
Ratio Decidendi
The court found that the application to set aside the dismissal was adequately explained by the applicant, who was not informed of the suit's progress due to the previous advocate's illness and abandonment of practice. There was no evidence to the contrary. The court accepted the explanation and allowed the application, reinstating the suit for the surviving plaintiff. The suit by the second plaintiff was deemed to have abated due to his death. The court ordered the surviving plaintiff to take a hearing date within 21 days.
Court Disposition
Application allowed; suit reinstated for surviving plaintiff; suit abated for second plaintiff.
Orders
- Application to set aside dismissal is allowed.
- Suit is reinstated for hearing for the surviving plaintiff, Njogu Maregwa.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT
AT NAIROBI
MILIMANI COMMERCIAL AND ADMIRALTY DIVISION
Civil Case 1368 of 1999
NJOGU MAREGWA & ANOTHER ……….……………...PLAINTIFFS
VERSUS
MAGU RUTERE & FOUR OTHERS ………………… DEFENDANTS
R U L I N G
The parties agreed to argue a Preliminary Objection raised first.
“That the application is bad in law and offends the clear provisions of Civil Procedure Rules and the same ought to be struck out with costs.”
The application dated 8/12/2008 was filed by plaintiff under Order 2 (1) and 1 (b) Rule 8 of the Civil Procedure Rules seeking the setting aside of the orders made on 3/12/04 dismissing this suit and that this suit be reinstated for hearing.
On the hearing date the defendants filed a preliminary objection. It is submitted that the suit was dismissed on 3/12/2004. The application was filed by the firm of Kanyi Advocates who took over from advocates who were acting for plaintiff at the time the suit was dismissed. They have no locus standi. They have to comply with Order 3 Rule 9 (a).
The second plaintiff’s suit has abated because he died on 27/2/05. It appears that the advocate who was engaged by the plaintiffs abandoned his practice and is no longer in active legal practice. The supporting affidavits show that the applicants did not receive any communication from their advocate and therefore they never came to know of the fate of the suit. As it is the suit was dismissed on 3/12/04 for want of prosecution.
From that day the parties appeared in court on 18/2/09 with this application. The position appears to me that the suit by the second plaintiff has abated. The surviving plaintiff, Njogu Maregwa may proceed with the suit. However, the suit was dismissed for want of prosecution. From what the plaintiff/applicant states the advocate representing him became sick, did not keep the plaintiff informed of the progress of the suit. There is no evidence to the contrary.
The application set aside dismissal is explained and I accept it having been caused no reasons of applicant. I therefore allow the application and grant orders as prayed by the surviving plaintiff. However, the plaintiff shall take a hearing date for the suit within the next 21 days as a matter of urgency.
It is so ordered.
DATED, SIGNEDand DELIVEREDat Nairobi this 3rd day of November, 2009.
JOYCE N. KHAMINWA
JUDGE