[2019] KEHC 3138 (KLR)
The court found that although the plaintiff had delayed in prosecuting the matter, the interests of justice required that the parties not be driven from the seat of justice without a fair hearing. The court noted that there was no significant prejudice to the respondent if the suit was reinstated. The court also...
Source-derived case information.
- Citation
- [2019] KEHC 3138 (KLR)
- Parties
- Plaintiff: Rai Plywoods (K) Ltd; Defendant: Mt Elgon County Council
- Court
- High Court
- Court Station
- High Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Civil Case 33 of 2005
- Procedural Posture
- Civil Case / Ruling on Application to Set Aside Dismissal and Reinstate Suit
- Outcome
- Application allowed; suit reinstated and transferred to lower court; costs to respondent.
- Judges
- HK Chemitei
- Legal Topics
- Dismissal for Want of Prosecution, Reinstatement of Suit, Service of Notice, Amendment of Pleadings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rai Plywoods (K) Ltd
Plaintiff
Mt Elgon County Council
Defendant
Procedural Posture
Civil Case / 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 notice to show cause before dismissal.
- 3 Whether the suit should be reinstated and transferred to the lower court.
Ratio Decidendi
The court found that although the plaintiff had delayed in prosecuting the matter, the interests of justice required that the parties not be driven from the seat of justice without a fair hearing. The court noted that there was no significant prejudice to the respondent if the suit was reinstated. The court also observed that the anticipated amendment to the plaint could be determined at the lower court. Consequently, the court exercised its discretion to set aside the dismissal order, reinstate the suit, and transfer the matter to the lower court at Kitale for hearing and final disposal, with costs awarded to the respondent.
Court Disposition
Application allowed; suit reinstated and transferred to lower court; costs to respondent.
Orders
- The dismissal order dated 31st October, 2018 is set aside.
- The suit is reinstated.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KITALE
CIVIL CASE NO.33 OF 2005
RAI PLYWOODS (K) LTD..............................PLAINTIFF /APPLICANT
VERSES
MT ELGON COUNTY COUNCIL..........DEFENDANT/RESPONDENT
RULING
1. By its application dated 26th November, 2018 the Applicant prays that the orders of this court dated 31st October, 2018 dismissing the entire suit be set aside and that direction be given regarding the hearing of the main suit. The same is supported by the sworn affidavit of Alfred Nyairo sworn on the even date.
2. The grounds raised are that the Plaintiff was not served with a notice to show cause why the suit should not be dismissed for want of prosecution and that the same was made pursuant to an error on the face of record.
3. The Respondents vide the grounds of opposition stated that there was no error apparent on the face of record and that the Plaintiff had failed to prosecute the same for over 14 years.
4. I have read the proceedings as well as the submission by the parties and its clear that this matter has taken a very long time to prosecute. The application for example for amending the plaint has not been prosecuted since it was filed on the 10th October, 2016 and the same has been due to reluctance on the part of the plaintiff although the Defendant has not equally taken any action.
5. All in all, so as not to drive away the parties from the seat of justice, this court shall allow the application with costs to the Respondent. There is no prejudice to be suffered by the Respondent.
6. The court has equally perused the anticipated amendment to the plaint and takes cognisance of the fact that the same can be determined at the lower court. In the premises this matter is hereby reinstated and transferred to the lower court at Kitale for hearing and final disposal.
Dated, signed and delivered in open court at Kitale this 11th day of June 2019.
__________________
H.K CHEMITEI
JUDGE
11/6/19
In the presence of:
Kipruto for the Plaintiff/Applicant
None Appearence for the Respondent
Court Assistant
Ruling read in open court.