[2012] KEHC 5700 (KLR)
The court found that the applicant had demonstrated sufficient cause to warrant the setting aside of the dismissal order. However, due to the applicant's delay in prosecuting the matter, the court exercised its discretion to impose terms for reinstatement. Specifically, the applicant was required to furnish a bank...
Source-derived case information.
- Citation
- [2012] KEHC 5700 (KLR)
- Parties
- Applicant: Fintel Limited; Respondent: Kenya Revenue Authority
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 1768 of 2004
- Procedural Posture
- Miscellaneous Application / Application to Set Aside Dismissal for Want of Prosecution
- Outcome
- Application to set aside dismissal granted with conditions.
- Legal Topics
- Reinstatement of Suit, Dismissal for Want of Prosecution, Security for Costs
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Fintel Limited
Applicant
Kenya Revenue Authority
Respondent
Procedural Posture
Miscellaneous Application / Application to Set Aside Dismissal for Want of Prosecution
Legal Issues
- 1 Whether sufficient cause has been shown to set aside the dismissal order for want of prosecution.
- 2 Whether the applicant should be subjected to terms for reinstatement of the suit.
Ratio Decidendi
The court found that the applicant had demonstrated sufficient cause to warrant the setting aside of the dismissal order. However, due to the applicant's delay in prosecuting the matter, the court exercised its discretion to impose terms for reinstatement. Specifically, the applicant was required to furnish a bank guarantee in favour of the respondent for Kshs. 2.5 million within 14 days, failing which the suit would remain dismissed. The court balanced the interests of justice by allowing the matter to proceed while protecting the respondent from potential prejudice through the security requirement.
Court Disposition
Application to set aside dismissal granted with conditions.
Orders
- The dismissal order made on 16th February 2012 is set aside and the Notice of Motion dated 13th January 2005 is reinstated for hearing.
- The ex-parte applicant shall furnish a bankers guarantee in favour of the respondent from a reputable bank in the sum of Kshs. 2.5 million within 14 days, whereupon the applicant's bank account shall be unfrozen.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
JUDICIAL REVIEW
AND
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
MISC. APPL. NO. 1768 OF 2004
BETWEEN
REPUBLIC EXPARTE
FINTEL LIMITED...........................................................................APPLICANT
AND
KENYA REVENUE AUTHORITY.............................................RESPONDENT
RULING
The Notice of Motion before the Court is dated 17th July 2012 and it seeks to set aside the dismissal orders given on 16thFebruary 2012 dismissing the suit for want of prosecution. I have read the affidavit of Hillary Maina sworn on 17th July 2012 and I am satisfied that cause has been shown to reinstate the matter.
I however, note that the applicant has been tardy in prosecuting the matter and I shall therefore impose terms for the reinstatement of this matter;
1. The dismissal order made on 16th February 2012 be and is hereby set aside and the Notice of Motion dated 13th January 2005 shall be reinstated for hearing.
2. The ex-parte applicant shall furnish a bankers guarantee in favour of the respondent from a reputable bank in the sum of Kshs.2. 5 million within 14 days from the date hereof whereupon the applicants bank account shall be enfrozen.
3. If the order (2) is not complied with, the Notice of Motion shall stand dismissed.
4. The Notice of Motion dated 13th January 2005 shall be heard on 24th September 2012. Parties to file and exchange written submissions.
DATED and DELIVERED at NAIROBI this 26th day of July 2012.
D.S. MAJANJA
JUDGE
Mr P Kahonge instructed by MachariaKahonge& Company Advocates for the ex-parte applicant
Ms B Obundo instructed by the Kenya Revenue Authority, the respondent.