[2017] KEHC 5782 (KLR)
The court held that since the suit had already been struck out by a previous ruling and no application had been made to set aside or review that dismissal, there was no subsisting suit upon which the present application for extension of time could be anchored. The applicant's only recourse would have been to seek to...
Source-derived case information.
- Citation
- [2017] KEHC 5782 (KLR)
- Parties
- Applicant: Sammy Philip G. Mbugua; Respondent: Esther Wangari Ng'ang'a; Respondent: Veronica Gathoni Ngigi
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Case 125 of 2011
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Extend Time to File Reply After Suit Struck Out
- Outcome
- application dismissed
- Judges
- JK Mulwa
- Legal Topics
- Extension of Time, Striking Out of Suit, Res Judicata, Limitation of Actions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Sammy Philip G. Mbugua
Applicant
Esther Wangari Ng'ang'a
Respondent
Veronica Gathoni Ngigi
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Extend Time to File Reply After Suit Struck Out
Legal Issues
- 1 Whether the court can extend time to allow the plaintiff to file a reply after the suit has already been struck out.
- 2 Whether the application is res judicata due to a previous similar application having been dismissed.
- 3 Whether there is a suit in existence upon which the present application can be anchored.
Ratio Decidendi
The court held that since the suit had already been struck out by a previous ruling and no application had been made to set aside or review that dismissal, there was no subsisting suit upon which the present application for extension of time could be anchored. The applicant's only recourse would have been to seek to set aside the dismissal or to appeal, not to file further applications in a non-existent suit. Furthermore, the court found that the application was res judicata, as a similar application had previously been dismissed. Accordingly, the application was dismissed as it was made in a vacuum and there was nothing to stay or revive.
Court Disposition
application dismissed
Orders
- The application dated 21st April 2016 is dismissed with no orders as to costs.
- The interim order of stay granted by the court on the 25th April 2016 is discharged.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAKURU
CIVIL CASE NUMBER 125 OF 2011
SAMMY PHILLIP G.MBUGUA....................................PLAINTIFF/APPLICANT
VERSUS
1. ESTHER WANGARI NG'ANG'A..............1ST DEFENDANT/RESPONDENT
2. VERONICA GATHONI NGIGI..................2ND DEFENDANT/RESPONDENT
RULING
1. The Notice of Motion dated 21st April 2016 was filed by Sammy Philip G. Mbugua the plaintiff under a certificate of urgency. He seeks the following orders:
1. spent
2. spent
3. That the Honourable Court be pleased to extend time within which the plaintiff may file his reply (?)
2. In his supporting affidavit, he deposes that the ruling on his application dated 2nd September 2014 was delivered in his absence and without notice and that since then, the court file went missing and could not extract the order or appeal against it upto the 21st April 2016 when it was traced.
3. I have seen an annexture marked “SPGM2” that is the reply the applicant wishes to be granted leave to file out of time. This document is a Replying Affidavit sworn on the 4th December 2015 by the applicant in reply to an application dated 6th December 2011.
4. I have gone out of my way to peruse the said application. It was brought by the 1st Defendant Esther Wangari Nganga underOrder 2 rule 15 of Civil Procedure Rules.
She sought orders that the plaint dated 2nd June 2011 and filed on the same day be struck out on the basis that the suit is based on a void and illegal contract that cannot be enforced, and is barred by the Law of Limitation of Actions Act.
Perusal of the court proceedings thereafter show that the application was heard and a ruling delivered by the Honourable Justice H. Omondi on the 8th March 2013, whereof the suit was struck out.
5. In striking out the suit, the Judge made findings that the applicant had not responded to the application or even offered any explanation for the late action. The suit was thus struck out with costs.
To that extent, as at the time of filing of the present application by the plaintiff on the 21st April 2016, there was no suit upon which the application could stand or be filed. The best the applicant could have done was to apply to either set aside the dismissal order upon reasonable grounds or file an appeal or review against the dismissal order issued on the 8th March 2013, four years back.
6. In opposing the application, the respondent filed grounds of opposition on the 12th May 2016. It is stated that this application is res judicata, a similar application having been filed on the 2nd September 2015 heard and dismissed on the 17th September 2015. These orders are in place. The decree of the court is to the effect that this suit is struck out. It is therefore clear that there is nothing to stay, and there being no case or other application to revive the case or set aside the dismissal orders, the application dated 21st April 2016 cannot be allowed in a vacuum.
The application is therefore dismissed with no orders as to costs.
Consequently, the interim order of stay granted by the court on the 25th April 2016 is discharged.
Dated, Signed and Delivered this 7th Day of April 2017.
J.N. MULWA
JUDGE