[2014] KEHC 826 (KLR)
The court found that the plaintiffs were not served with the Notice to Show Cause prior to the dismissal of their suit on 6th February 2012. The court also noted that an interlocutory judgment had already been entered in favour of the plaintiffs, and the only step remaining was formal proof. Since the application to...
Source-derived case information.
- Citation
- [2014] KEHC 826 (KLR)
- Parties
- Plaintiff: Rabindra Prosonno Kumar Mittra, East African Building Society, Bhikhubai Ramji Ghedia, Shakuntalal Maganbhai Patel, Noorbanui Hirji, Kantilal Tulsidas Dhanak, Kanubha H. Patel, Amritlal Vadgama, Sultnali Habibi Walji, Sairoz Begum Lallani, Hasmukh Devshi Ghedia; Defendant: Commercial Investments Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 573 of 2007
- Procedural Posture
- Civil Case / Ruling on Application to Set Aside Dismissal and Reinstate Suit
- Outcome
- Application allowed; suit reinstated.
- Judges
- DO Ogembo
- Legal Topics
- Dismissal of Suit, Reinstatement of Suit, Notice to Show Cause, Formal Proof, Reversionary Interest
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rabindra Prosonno Kumar Mittra, East African Building Society, Bhikhubai Ramji Ghedia, Shakuntalal Maganbhai Patel, Noorbanui Hirji, Kantilal Tulsidas Dhanak, Kanubha H. Patel, Amritlal Vadgama, Sultnali Habibi Walji, Sairoz Begum Lallani, Hasmukh Devshi Ghedia
Plaintiff
Commercial Investments Limited
Defendant
Procedural Posture
Civil Case / Ruling on Application to Set Aside Dismissal and Reinstate Suit
Legal Issues
- 1 Whether the order dismissing the suit on 6th February 2012 should be set aside.
- 2 Whether the plaintiffs were properly served with the Notice to Show Cause prior to dismissal.
- 3 Whether the suit should be reinstated for hearing and determination on merit.
Ratio Decidendi
The court found that the plaintiffs were not served with the Notice to Show Cause prior to the dismissal of their suit on 6th February 2012. The court also noted that an interlocutory judgment had already been entered in favour of the plaintiffs, and the only step remaining was formal proof. Since the application to reinstate the suit was unopposed and the plaintiffs would suffer prejudice if the dismissal stood, the court exercised its discretion to set aside the dismissal and reinstate the suit for hearing on its merits. The plaintiffs were directed to list the matter for formal proof within 60 days.
Court Disposition
Application allowed; suit reinstated.
Orders
- The order dismissing the suit on 6th February 2012 is set aside.
- The suit is reinstated and to be fixed for hearing and determination on merit.
Full Case Text
Judgment text and source record
41 paragraphs
97REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI COMMERCIAL &ADMIRALTY DIVISION
CIVIL CASE NO. 573 OF 2007
RABINDRA PROSONNO KUMAR MITTRA
EAST AFRICAN BUILDING SOCIETY
BHIKHUBAI RAMJI GHEDIA
SHAKUNTALAL MAGANBHAI PATEL
NOORBANUI HIRJI
KANTILAL TULSIDAS DHANAK
KANUBHA H. PATEL
AMRITLAL VADGAMA
SULTNALI HABIBI WALJI
SAIROZ BEGUM LALLANI
HASMUKH DEVSHI GHEDIA ......................... PLAINTIFFS
VERSUS
COMMERCIAL INVESTMENTS LIMITED........... DEFENDANT
R U L I N G
The Notice of Motion application before the court is dated 23rd October 2014. It seeks the orders namely:-
That this application be certified as urgent and the same be heard ex-parte in the first instance.
That this Honourable Court be pleased to set aside the Order made on 6th February 2012 dismissing the Plaintiff’s suit.
That this suit be reinstated and be fixed for hearing and determination on merit.
That the costs of this application do abide the outcome of the main suit.
The application is premised on the grounds set out therein namely:-
That this case is dismissed by the court on the 6th February 2012 allegedly pursuant to a Notice to Show Cause dated 19th January 2012.
That no notice was ever received by the Plaintiffs or their advocates on record.
That the order of dismissal only came to the Notice of the Plaintiff’s advocate when this court clerk went to fix a hearing date.
That the effect of the dismissal is quite drastic as it leaves the Plaintiffs as squatters on land that they rightfully and legally purchased.
That it is in the interest of justice that the Plaintiffs suit be reinstated and that their claim for reversionary interest be awarded as prayed n the Plaint.
That the reinstatement of this suit will not prejudice the Defendant in any way.
The application is supported by affidavit of Mohammed Akran Khandated 16th October 2014.
The application was served and affidavit of service filed in court on 22nd October 2014. The application is not opposed. The main ground worth considering is that by the time the suit was dismissed on 6th February 2012, there was already an interlocutory judgement on record for the Plaintiff, and what was waiting to be done was a formal proof. When the Plaintiff sought to list the matter for formal proof, they found that the suit was already dismissed.
The above point is worth considering, and especially given that the suit is halfway done. Since the application is not opposed, I allow it as prayed and direct the Plaintiff to list the formal proof for hearing within 60 days from today.
Orders accordingly.
READ, DELIVERED AND DATED AT NAIROBI THIS 18TH DAY OF NOVEMBER 2014
E. K. O. OGOLA
JUDGE
PRESENT:
No appearance for the for Plaintiffs
No appearance for the Defendant
Teresia – Court C lerk