[2021] KEHC 13200 (KLR)
The court found that the affidavit of service was unsatisfactory, as it purported to serve the Notice to Show Cause before the notice was even issued. The applicant's explanation that the parties were engaged in settlement negotiations was supported by uncontroverted correspondence. Since the respondent did not...
Source-derived case information.
- Citation
- [2021] KEHC 13200 (KLR)
- Parties
- Plaintiff: Phyllis Chepkoech Keino; Defendant: The Kenya Power & Lighting Co. Ltd
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 124 of 2015
- Procedural Posture
- Civil Application / Ruling on Application to Set Aside Dismissal and Reinstate Suit
- Outcome
- application allowed; suit reinstated
- Judges
- BT Jaden
- Legal Topics
- Dismissal for Want of Prosecution, Reinstatement of Suit, Service of Notice, Pre Trial Directions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Phyllis Chepkoech Keino
Plaintiff
The Kenya Power & Lighting Co. Ltd
Defendant
Procedural Posture
Civil Application / Ruling on Application to Set Aside Dismissal and Reinstate Suit
Legal Issues
- 1 Whether the dismissal of the suit for want of prosecution should be set aside.
- 2 Whether the plaintiff was properly served with the Notice to Show Cause prior to dismissal.
- 3 Whether the suit should be reinstated for hearing on its merits.
Ratio Decidendi
The court found that the affidavit of service was unsatisfactory, as it purported to serve the Notice to Show Cause before the notice was even issued. The applicant's explanation that the parties were engaged in settlement negotiations was supported by uncontroverted correspondence. Since the respondent did not oppose the application and the procedural requirements for dismissal were not properly followed, the court held that the dismissal should be set aside and the suit reinstated to allow for hearing on the merits.
Court Disposition
application allowed; suit reinstated
Orders
- The order dismissing the suit for want of prosecution is set aside.
- The suit is reinstated for hearing and final determination.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL DIVISION
HIGH COURT CIVIL CASE NO. 124 OF 2015
PHYLLIS CHEPKOECH KEINO................................................PLAINTIFF
VERSUS
THE KENYA POWER & LIGHTING CO. LTD.....................DEFENDANT
RULING.
1. The application dated 23/2/2021 seeks orders that;
1. Spent
2. This Honourable Court be pleased to set aside, vary and/or otherwise discharge the Order of this Honourable Court of 16th October, 2020 by which this suit was dismissed for want of prosecution, together with all consequential orders arising therefrom.
3. This Honourable Court be pleased to reinstate this suit for hearing and final determination.
4. Further to prayer No. 3 hereinabove, this Honourable Court be pleased to issue any other orders it may deem fit to meet the ends of justice, including setting this suit down for hearing.
5. The costs of this application be provided for.
2. It is stated in the grounds set out in the application supporting affidavit that the Applicant was not served with the Notice to Show Cause why the suit should not be dismissed. That the hearing of this suit was placed on hold as the parties were holding negotiations with a view to settling the matter, hence the delay in the prosecution. That the negotiations did not bear fruit and when the Plaintiff took steps to fix the suit for hearing, it was discovered that the suit had been dismissed. It is further averred that the Plaintiff had already complied with pre-trial directions but now stands to suffer the prejudice of not being heard on merits.
3. The Respondent did not file any papers in response to the application.
4. This suit was dismissed by the court on 16/10/2020 under Order 17 Rule 2(1) of the Civil Procedure Rules which provides;
“In any suit in which no application has been made or step taken by either party for one year, the court may give notice in writing to the parties to show cause why the suit dismissed, and if cause is not shown to its satisfaction, may dismiss the suit”.
5. A perusal of the court record reflects that before the said dismissal, the last time any step had been taken in the suit was on 1/2/2018. The suit had therefore been dormant by a period of over 21/2 years and was therefore ripe for dismissal.
6. An affidavit of service sworn by the court’s Process Server reflects that service was effected on the Applicant’s Advocates on 1/9/2020 by way of registered post. However, the Notice to Show Cause is dated 9/9/2020. One wonders how the said Notice was served on 1/9/2020 before it was even issued. The affidavit of service is not satisfactory.
7. The Applicant has explained to the court that the parties were engaged in negotiations with a view to settling the matter. The Applicant has also exhibited correspondence between the parties regarding the said negotiations. Those averments by the Applicant remain uncontroverted.
8. The upshot is that the application is allowed with costs in cause.
DATED, SIGNED AND DELIVERED AT NAIROBI THIS 15TH DAY OF JULY, 2021
B.THURANIRA JADEN
JUDGE