[2001] KEHC 696 (KLR)
The court declined to strike out the suit at this stage because there is a consent order on record acknowledging payment of the principal amount and reserving the issues of costs and interest for determination. Striking out the suit now would create unnecessary confusion and potentially prejudice the parties, as the...
Source-derived case information.
- Citation
- [2001] KEHC 696 (KLR)
- Parties
- Plaintiff: ROT-MEI LTD.; Defendant: GENERAL M. TIMOTHY ORWENYO
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 173 of 2001
- Procedural Posture
- Civil Case / Ruling on Application to Strike Out Suit
- Outcome
- Application to strike out suit stayed; suit not struck out or dismissed.
- Judges
- CA Otieno
- Legal Topics
- Striking Out of Suit, Abuse of Court Process, Costs and Interest, Stay of Application
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
ROT-MEI LTD.
Plaintiff
GENERAL M. TIMOTHY ORWENYO
Defendant
Procedural Posture
Civil Case / Ruling on Application to Strike Out Suit
Legal Issues
- 1 Whether the suit should be struck out on the ground that the principal amount was paid before filing.
- 2 Whether continuation of the suit would embarrass, prejudice or delay the fair trial and constitute an abuse of court process.
- 3 Whether the application to strike out should be determined before the issue of costs and interest is resolved.
Ratio Decidendi
The court declined to strike out the suit at this stage because there is a consent order on record acknowledging payment of the principal amount and reserving the issues of costs and interest for determination. Striking out the suit now would create unnecessary confusion and potentially prejudice the parties, as the outstanding issues have yet to be resolved. The court exercised its discretion to stay the application to strike out the suit until the scheduled hearing date for submissions on costs and interest, allowing both parties the opportunity to argue the application at that time. This approach preserves the integrity of the court process and ensures that all issues between the...
Court Disposition
Application to strike out suit stayed; suit not struck out or dismissed.
Orders
- The application to strike out the suit is stayed until 2nd November 2001.
- Parties to make submissions on costs and interest on 2nd November 2001.
Full Case Text
Judgment text and source record
10 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI MILIMANI COMMERCIAL COURTS CIVIL CASE NO. 173 OF 2001
ROT-MEI LTD. ……………………………………………. PLAINTIFF VERSUS GENERAL M. TIMOTHY ORWENYO …………………… DEFENDANT
R U L I N G
This application seeks an Order that the suit herein be struck out with costs to the Defendant on grounds that the Principal amount claimed was paid before the filing of this suit, and that the suit may embarrass, prejudice or delay the fair trial and is an abuse of the court process. It is dated 13th September, 2001.
An application dated 3rd August 2001 had been set down for hearing on 8. 10. 2001 and the court’s orders were as follows:
“By consent of both parties, as the principal amount has been paid, the dispute on costs and interest to be heard on 2. 11. 2001”.
That application was by the Plaintiff/Applicant seeking Defence to be struck out and judgment to be entered for the Plaintiff as prayed in the suit.
In my humble opinion, it would be wrong to strike out the entire suit at this stage with the above order in the record. It would create unnecessary confusion. I will not strike out the suit and I will not dismiss this application either. I do stay this application till 2nd November 2001 when submissions will be made on costs and interest in the entire case. The parties will be at liberty to argue this application on that day. Orders accordingly.
Dated this 30th day of October 2001.
ONYANGO OTIENO JUDGE