[2019] KEHC 166 (KLR)
The court found that although the period of inactivity was fifteen months, this was only three months beyond the statutory threshold of twelve months under Order 17 Rule 2(1) of the Civil Procedure Rules. The court exercised its discretion not to dismiss the suit, noting that the delay was not egregious and that the...
Source-derived case information.
- Citation
- [2019] KEHC 166 (KLR)
- Parties
- Plaintiff: Rafiki Microfinance Bank Limited; Defendant: Zenith Pharmaceuticals Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 607 of 2014
- Procedural Posture
- Notice to Show Cause / Ruling on Notice to Show Cause Regarding Dismissal for Want of Prosecution
- Outcome
- Suit not dismissed; plaintiff granted conditional leave to proceed.
- Judges
- F Tuiyott
- Legal Topics
- Dismissal for Want of Prosecution, Case Management, Delay in Prosecution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rafiki Microfinance Bank Limited
Plaintiff
Zenith Pharmaceuticals Limited
Defendant
Procedural Posture
Notice to Show Cause / Ruling on Notice to Show Cause Regarding Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the suit should be dismissed for want of prosecution due to inactivity exceeding twelve months.
- 2 Whether the delay in prosecuting the suit justifies striking out the suit under Order 17 Rule 2(1) of the Civil Procedure Rules.
Ratio Decidendi
The court found that although the period of inactivity was fifteen months, this was only three months beyond the statutory threshold of twelve months under Order 17 Rule 2(1) of the Civil Procedure Rules. The court exercised its discretion not to dismiss the suit, noting that the delay was not egregious and that the notice to show cause was issued by the court itself rather than on the defendant's application. However, the court imposed strict conditions requiring the plaintiff to prepare the suit for trial within thirty days, failing which the suit would stand dismissed automatically. Costs of the notice to show cause proceedings were awarded to the defendant.
Court Disposition
Suit not dismissed; plaintiff granted conditional leave to proceed.
Orders
- Plaintiff shall within 30 days prepare the suit for trial and move court for case management conference.
- Time computation to consider Order 50 Rule 4 of the Civil Procedure Rules.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
COMMERCIAL & ADMIRALTY DIVISION
HCCC NO. 607 OF 2014
RAFIKI MICROFINANCE BANK LIMITED..........................................PLAINTIFF
VERSUS
ZENITH PHARMACEUTICALS LIMITED.........................................DEFENDANT
RULING
1. This ruling is in respect to a Notice to Show Cause issued by this Court on 20th September 2018.
2. The Court has considered the affidavits sworn in support and against the Notice. The Court has also read the submissions by Counsel.
3. The Court will permit the suit to survive the Notice to Show Cause. This is my reason.
4. Prior to the Notice, the last activity in the file was on 15th July 2017 when this Court delivered a Ruling. So, between the Ruling date and the date of the Notice to Show Cause, the lapse was about 15 months. While the time of inactivity is undoubtedly long, it is just three months outside the red line set by order 17 Rule 2(1) which reads:-
[Order 17, rule 2] Notice to show cause why suit should not be dismissed.
2. (1) 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. Striking out of the suit is a drastic order. For the fact that the delay is not way outside the 12 months prescribed by law and that these dismissal proceedings were prompted by the Court and not on the application of the Defendant, I will not dismiss the suit for want of prosecution.
6. But there will be conditions attached to this decision;-
a) The Plaintiffs shall within 30 days hereof prepare the suit for trial and move Court for case management conference.
b) In computing time in (a) above regard shall be made to the provisions of Order 50 Rule 4 of the Civil Procedure Rules.
c) In default of (a) above the suit shall stand dismissed without need for a further Court order.
d) Costs of the Notice to Show Cause proceedings shall be to the Defendant in any event.
Dated, Signed and Delivered in Court at Nairobi this 20th Day of December 2019.
F. TUIYOTT
JUDGE
PRESENT;
Thiongo for the Plaintiff
No appearance for Defendant
Court Assistant: Nixon