[2024] KEHC 2871 (KLR)
The court found that the plaintiff had provided plausible reasons for the failure to prosecute the suit, including the loss of the advocates' file during an office relocation and the lack of proper service of subsequent notices to show cause. The only notice to show cause served was for 6/11/2020, and not for the...
Source-derived case information.
- Citation
- [2024] KEHC 2871 (KLR)
- Parties
- Plaintiff: Ramboo Kenya Limited; Defendant: Uhuru Highway Development Limited; Defendant: The Receiver-Grand Regency Hotel
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 1044 of 2000
- Procedural Posture
- Civil Suit / Ruling on Application to Set Aside Dismissal for Want of Prosecution
- Outcome
- application allowed; suit reinstated
- Judges
- A Mabeya
- Legal Topics
- Dismissal for Want of Prosecution, Setting Aside Orders, Notice to Show Cause, Reinstatement of Suit
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ramboo Kenya Limited
Plaintiff
Uhuru Highway Development Limited
Defendant
The Receiver-Grand Regency Hotel
Defendant
Procedural Posture
Civil Suit / Ruling on Application to Set Aside Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the order dismissing the suit for want of prosecution should be set aside.
- 2 Whether sufficient cause was shown for the failure to prosecute the suit.
- 3 Whether proper notice to show cause was served on the plaintiff.
Ratio Decidendi
The court found that the plaintiff had provided plausible reasons for the failure to prosecute the suit, including the loss of the advocates' file during an office relocation and the lack of proper service of subsequent notices to show cause. The only notice to show cause served was for 6/11/2020, and not for the later dates when the matter was dismissed. The court was satisfied that sufficient cause had been shown and that the dismissal order should be set aside in the interests of justice. The suit was reinstated to be heard on its merits, with costs to abide the outcome of the suit.
Court Disposition
application allowed; suit reinstated
Orders
- The order of 18/10/2023 dismissing the suit for want of prosecution is set aside.
- The suit is reinstated for hearing on its merits.
Full Case Text
Judgment text and source record
26 paragraphs
Ramboo Kenya Limited v Uhuru Highway Development Limited & another (Civil Suit 1044 of 2000) [2024] KEHC 2871 (KLR) (Commercial and Tax) (21 March 2024) (Ruling)
Neutral citation: [2024] KEHC 2871 (KLR)
Republic of Kenya
In the High Court at Nairobi (Milimani Commercial Courts)
Commercial and Tax
Civil Suit 1044 of 2000
A Mabeya, J
March 21, 2024
Between
Ramboo Kenya Limited
Plaintiff
and
Uhuru Highway Development Limited
1st Defendant
The Receiver-Grand Regency Hotel
2nd Defendant
Ruling
1. Before me is the plaintiff’s application dated 11/1/2024. The same is brought, inter alia, under sections 1A, 1B, 3A and 95 of the Civil Procedure Act and Order 17 Rule 2(6) of the Civil Procedure Rules.
2. It seeks the setting aside of the order of 18/10/2023 that dismissed the suit for want of prosecution. The grounds therefor are; that the matter had been certified ready for hearing on 23/11/2020 and fixed for hearing on 8/2/2021. However, it was not cause listed on the said 8/2/2021. The plaintiff’s advocates tried unsuccessfully to have the same listed for hearing vide letters dated 8/2/2021, 21/6/2021 and 30/8/2021 respectively.
3. That the matter came up severally for Notice to Show Cause on 21/2/2023, 1/8/2023 and 9/8/2023 but none of the notices were served upon the plaintiffs. That the Advocates file was misplaced towards the end of 2022 whereby the matter remained in Limbo for quite some time until after 18/10/2023 when they discovered that it had been dismissed.
4. The plaintiff filed its submissions which I have considered. The application was served but not opposed.
5. I have considered the averments in the supporting affidavit of Eva Kahiti sworn on 11/1/2024. I have considered the reasons advanced for the failure to prosecute the suit and I am satisfied that the same are plausible. The loss of the advocates file during the relocation of their offices in 2022 as deponed to may have led to the long period when the matter remained in limbo.
6. Further, I have perused the record and have found that the only notice to show cause that was served upon the plaintiff’s advocates is the one for 6/11/2020 and not subsequently.
7. In the premises, I am satisfied that cause has been shown why the suit should not have been dismissed. I allow the application and hereby set aside the order for dismissal and reinstate the suit for hearing on merit. The costs shall abide the outcome of the suit.
It is so ordered.
DATED AND DELIVERED AT NAIROBI THIS 21ST DAY OF MARCH, 2024. A. MABEYA, FCI ArbJUDGE