[2016] KEHC 4070 (KLR)
The court found that although the suit had been inactive for two years, there was insufficient evidence that the plaintiff or their advocate had been properly served with the notice to show cause prior to dismissal. The court noted that the notice was posted on the judiciary website, but there was no guarantee the...
Source-derived case information.
- Citation
- [2016] KEHC 4070 (KLR)
- Parties
- Plaintiff: Samuel Odongo Mukhwana; Defendant: Global Allied Industries Limited; Defendant: The Hon Attorney General
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 130 of 2006
- Procedural Posture
- Civil Case / Ruling on Application to Set Aside Dismissal and Reinstate Suit
- Outcome
- Application allowed; dismissal order set aside; suit reinstated.
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Dismissal for Want of Prosecution, Review of Court Orders, Reinstatement of Suit
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Samuel Odongo Mukhwana
Plaintiff
Global Allied Industries Limited
Defendant
The Hon Attorney General
Defendant
Procedural Posture
Civil Case / Ruling on Application to Set Aside Dismissal and Reinstate Suit
Legal Issues
- 1 Whether the dismissal of the suit under Order 17 Rule 2(1) of the Civil Procedure Rules should be set aside and the suit reinstated.
- 2 Whether the applicant met the requirements for review or setting aside the dismissal order.
- 3 Whether the court is functus officio and incapable of granting the orders sought.
Ratio Decidendi
The court found that although the suit had been inactive for two years, there was insufficient evidence that the plaintiff or their advocate had been properly served with the notice to show cause prior to dismissal. The court noted that the notice was posted on the judiciary website, but there was no guarantee the applicant accessed it. Both parties were absent at the time of dismissal. The defendant failed to demonstrate any prejudice that would result from reinstatement. In the interests of justice and exercising its discretion, the court set aside the dismissal order and reinstated the suit, allowing the parties to proceed to hearing.
Court Disposition
Application allowed; dismissal order set aside; suit reinstated.
Orders
- The dismissal order of 27th February, 2015 is set aside.
- The suit is reinstated for hearing.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL CASE NO. 130 OF 2008
SAMUEL ODONGO MUKHWANA …………......……… PLAINTIFF
VERSUS
GLOBAL ALLIED INDUSTRIES LIMITED…....… 1ST DEFENDANT
THE HON ATTORNEY GENERAL ….……………2ND DEFENDANT
RULING
On 27th February, 2015 Onyancha J dismissed this suit under Order 17 Rule 2 (1) of the Civil Procedure Rules. The plaintiff has now moved the court by way of Notice of Motion dated 3rd December, 2015 under Sections 1A, 1B and 3A of the Civil Procedure Act. Order 17 Rule 2 and Order 45 Rule 1 of the Civil Procedure Rules to review or set aside the said order and reinstate the suit to hearing. The reasons advanced are that the dismissal order was mistaken, the advocates on record were not served with the notice to show cause and the parties are desirious to conclude the matter through the court process.
Further, the plaintiffs advocate has unsuccessfully sought to list the case for hearing or mention. There is a supporting affidavit sworn by the advocate for the plaintiff applicant. The application is opposed and there are grounds of opposition filed by the defendants’ counsel who states that the court is functus officioand incapable of granting the orders sought by the applicant. Further, the requirements necessary for granting review orders have not been met.
It is also stated that the applicant is guilty of inordinate delay. Both counsel have filed submissions which I have noted. As at the time the dismissal order was made, the suit had remained inactive for a period of two years. The last entry was by Waweru J on 23rd January, 2013 where the suit was certified ready and could be listed for hearing.
Going by the provisions of law cited, it is always the intention of the court to sustain the suit rather than dismissing it. Both counsel did not appear when the suit was dismissed. A notice had been posted on the judiciary website but there is no guarantee that the applicant read or had access thereto. The defendant has not shown what prejudice, if any, would be suffered if the dismissal order is set aside and the suit reinstated.
I am inclined to exercise the court’s discretion by setting aside the dismissal order which I hereby do. The suit is now reinstated and the parties may now take a hearing date as ordered by Waweru J aforesaid. The costs shall be in the cause.
Dated, signed and delivered at Nairobi this 8th Day of June, 2016.
A. MBOGHOLI MSAGHA
JUDGE