[2023] KEHC 26085 (KLR)
The court found that the plaintiffs failed to comply with pre-trial directions as required by Order 11 of the Civil Procedure Rules, despite explicit orders and ample opportunity to do so. The plaintiffs' conduct demonstrated a lack of interest in prosecuting the suit. Furthermore, the subject matter of the suit had...
Source-derived case information.
- Citation
- [2023] KEHC 26085 (KLR)
- Parties
- Plaintiff: Johnson Masinde Simiyu; Plaintiff: Daniel Nyakundi; Defendant: Cytonn Investments Management
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Civil Case 6 of 2020
- Procedural Posture
- Civil Case / Ruling on Application to Dismiss Suit for Want of Prosecution and Non Compliance With Pre Trial Directions
- Outcome
- suit dismissed with costs to the defendant
- Judges
- REA Ougo
- Legal Topics
- Dismissal for Want of Prosecution, Pre Trial Directions, Non Compliance With Court Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Johnson Masinde Simiyu
Plaintiff
Daniel Nyakundi
Plaintiff
Cytonn Investments Management
Defendant
Procedural Posture
Civil Case / Ruling on Application to Dismiss Suit for Want of Prosecution and Non Compliance With Pre Trial Directions
Legal Issues
- 1 Whether the plaintiffs have failed to comply with pre-trial directions under Order 11 of the Civil Procedure Rules.
- 2 Whether the suit should be dismissed for want of prosecution and non-compliance with court orders.
- 3 Whether the plaintiffs are required to pursue their claims through the Official Receiver following the liquidation order in related insolvency proceedings.
Ratio Decidendi
The court found that the plaintiffs failed to comply with pre-trial directions as required by Order 11 of the Civil Procedure Rules, despite explicit orders and ample opportunity to do so. The plaintiffs' conduct demonstrated a lack of interest in prosecuting the suit. Furthermore, the subject matter of the suit had been placed under liquidation by a different court, with directions that all related claims be registered with the Official Receiver. The court held that the plaintiffs had an alternative statutory remedy and that continuing the proceedings would serve no practical purpose. The overriding objective of the Civil Procedure Act requires expeditious and efficient disposal of...
Court Disposition
suit dismissed with costs to the defendant
Orders
- The plaintiffs' suit is dismissed.
- The defendant is awarded the costs of the application and the suit.
Full Case Text
Judgment text and source record
23 paragraphs
Simiyu & another v Cytonn Investments Management (Civil Case 6 of 2020) [2023] KEHC 26085 (KLR) (30 November 2023) (Ruling)
Neutral citation: [2023] KEHC 26085 (KLR)
Republic of Kenya
In the High Court at Bungoma
Civil Case 6 of 2020
REA Ougo, J
November 30, 2023
Between
Johnson Masinde Simiyu
1st Plaintiff
Daniel Nyakundi
2nd Plaintiff
and
Cytonn Investments Management
Defendant
Ruling
1. Before me is an application dated the 22nd of May 2023. The application is brought under sections 1A and 3A of the Civil Procedure Act Cap. 21, Order 2 Rule 15, and Order 51 Rule 1 of the Civil Procedure Rules. The defendant/ applicant seeks to have the Plaint dated 27th July 2020 herein and the suit dismissed. That costs for and occasioned by the application and suit be borne by the plaintiffs/ respondents.
2. The application is supported by Antony N. Kimani the legal officer of the defendant/ applicant. The affidavit is quite detailed giving a history of the suit. The respondent has given details on how many times the matter came up for directions and confirmation on whether the plaintiffs had complied with the provisions of Order 11 of the Civil Procedure Rules (CPR). The applicant also contends that on the 6th January 2023 Justice Mabeya in Cytonn High Yield Solutions (CHYS) vs Office of the Official Receiver (Nairobi, Insolvency Petition E063 of 2021) placed Cytonn High Yield Solutions, the subject matter of this suit, under liquidation and directed that all related claims be registered with the Office of the Officer Receiver, an avenue that the plaintiffs/ respondents is legally required to explore. That as a result of the said order these proceedings are poised to ultimately become an academic exercise for this Court. The plaintiffs/ respondents are not without recourse as they have been invited to lodge their claims with the Official Receiver for determination and resolution and will not be prejudiced in anyway should the prayers sought herein be granted. That litigation must come to an end and the matter cannot be kept in abeyance indefinitely. That the orders sought to be granted.
3. The application was not opposed. The respondent was served with the application but filed no response.
Analysis and Determination 4. I have considered the application. I have also perused the entire court record. In a ruling dated 30th July 2021, Justice Riechi directed that the suit be set down for hearing within the next 60 days from the said date. The plaintiff has not complied with the said order. This suit was filed on the 30th of July 2020 vide a plaint dated the 27th of July 2020. The defendant filed its defence on the 27th of August 2020. Thereafter the defendant sought vide the application dated 27th August 2020 to have the plaint struck out and the suit dismissed with costs to the defendant. This application was not granted in the ruling dated the 30th July 2021.
5. On the 9th November 2022 this court gave directions to the parties to comply with the provisions of Order 11 of the CPR. On 12 July 2023, the plaintiffs’ counsel filed issues for trial and went quiet thereafter. Order 11 of the CPR gives a very elaborate procedure on what parties are to do during the pre-trial directions and conference. What was filed by the plaintiff were merely issues for trial and nothing more, the plaintiffs have not complied with the provisions of Order 11 of the CPR. The plaintiffs have not shown any interest in wanting to proceed with the suit. Order 7 rule 3 states as follows;(3). Any party or his advocate who wilfully fails or omits to comply with the provisions of this Order shall be deemed to have violated the overriding objective as stipulated in Section 1A and 1B of the Act and the court may order costs against the defaulting party unless for reasons to be recorded, the court orders otherwise.
6. After considering the averments of the applicant, the conduct of the plaintiffs in the matter, and the provisions of Order 11 of the CPR, it is my view that the plaintiffs and their advocate have failed to comply with the provisions of the Order and have thus violated the overriding objective as stipulated in Section 1A and 1B of the Civil Procedure Act. The application has merit and the plaintiffs’ suit is dismissed. The applicant is awarded the costs of the application and the application.
DATED, SIGNED, AND DELIVERED AT BUNGOMA THIS 30TH DAY OF NOVEMBER 2023. R.E. OUGOJUDGEIn the presence of;Miss Kamau h/b Miss Muriungi - For the DefendantPlaintiff- Absent. Wilkister - C/A .