[2005] KEHC 2308 (KLR)
The court held that the plaintiff's application for review was incompetent as the order of dismissal had not been extracted, a mandatory procedural requirement under Order 44, Rule 1 of the Civil Procedure Rules. Even if the application were considered on its merits, the plaintiff failed to provide any explanation...
Source-derived case information.
- Citation
- [2005] KEHC 2308 (KLR)
- Parties
- Plaintiff: Patriotic Guards Ltd; Defendant: The Co-operative Insurance Company of Kenya Ltd
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 935 of 2002
- Procedural Posture
- Civil Case / Ruling on Application for Review of Dismissal Order
- Outcome
- application dismissed with costs to the defendant
- Legal Topics
- Dismissal for Want of Prosecution, Review of Court Orders, Ex Parte Applications
- 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
Patriotic Guards Ltd
Plaintiff
The Co-operative Insurance Company of Kenya Ltd
Defendant
Procedural Posture
Civil Case / Ruling on Application for Review of Dismissal Order
Legal Issues
- 1 Whether the plaintiff has provided sufficient grounds for review of the order dismissing the suit for want of prosecution.
- 2 Whether failure to extract the dismissal order renders the application incompetent.
- 3 Whether the plaintiff adequately explained the delay in prosecuting the suit.
Ratio Decidendi
The court held that the plaintiff's application for review was incompetent as the order of dismissal had not been extracted, a mandatory procedural requirement under Order 44, Rule 1 of the Civil Procedure Rules. Even if the application were considered on its merits, the plaintiff failed to provide any explanation for the prolonged inaction in prosecuting the suit from 2002 to 2004. The supporting affidavit only addressed the absence of counsel on the day of dismissal, not the underlying failure to prosecute. The court found no sufficient grounds to review or set aside the dismissal order and concluded that the plaintiff had not demonstrated diligence or interest in pursuing the claim.
Court Disposition
application dismissed with costs to the defendant
Orders
- The plaintiff's application for review is dismissed.
- Costs awarded to the defendant.
Full Case Text
Judgment text and source record
12 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI MILIMANI COMMERCIAL COURTS CIVIL CASE NO. 935 OF 2002
PATRIOTIC GUARDS LTD……………………………..PLAINTIFF VERSUS THE CO-OPERATIVE INSURANCE COMPANY OF KENYA LTD………………………………………DEFENDANT
R U L I N G
The Plaintiff’s suit herein was dismissed with costs on 17th May, 2004 for want of prosecution. This was upon the Defendant’s application. At the hearing of the application there was no appearance for the Plaintiff. Again when the Defendant’s costs came up for taxation on 2nd August, 2004 there was no appearance for the Plaintiff despite service having been effected. However, the costs were not taxed as the taxing officer found the bill of costs to be defective and struck it out.
The Plaintiff now seeks by notice of motion dated 27th September, 2004 an order to review the order of dismissal of 17th May, 2004 upon the grounds that there are serious triable issues; that the application to dismiss the suit proceeded ex parte; and that the counsel who held brief for the Plaintiff’s counsel on 17th May, 2004 did not see the matter on the cause list. The application is opposed primarily upon the grounds that the application for dismissal was not opposed in that no grounds of opposition or replying affidavit was filed and that the Plaintiff had shown laxity and lack of interest to prosecute his case.
I have read the supporting and replying affidavits. I have also given due consideration to the submissions of the learned counsels appearing. The application is brought under Order 44, Rule 1 of the Civil Procedure Rules. Yet the order of 17th May, 2004 has not been extracted. Upon this ground alone the application is incompetent.
Even upon merit I would dismiss the application. There has not been any attempt at all on the part of the Plaintiff to explain why it did not prosecute the case. What the supporting affidavit seeks to do is to explain why there was no appearance for the Plaintiff on 17th May, 2004. But on that day the suit was dismissed because the Plaintiff had not taken any steps to prosecute it, not because there was no appearance for it. The least the Plaintiff could have done in this present application was to endeavor to explain why it took no steps to prosecute the suit from when it filed it in 2002 to when it was dismissed in 2004.
I would in the event dismiss the application with costs to the Defendant. Order accordingly.
DATED AND SIGNED AT NAIROBI THIS 24TH DAY OF JAUNARY,2005.
H. P. G. WAWERU
JUDGE
DELIVERED THIS____________DAY OF JANUARY, 2005