[2017] KEHC 5040 (KLR)
The court found that the dismissal of the suit was premature because less than one year had elapsed since the last court order, and there was insufficient evidence that the parties were properly served with notice of the intended dismissal. The court held that no prejudice had been occasioned to the defendant by...
Source-derived case information.
- Citation
- [2017] KEHC 5040 (KLR)
- Parties
- Plaintiff: Simon Njoroge Ngotho; Defendant: Masari Distributors Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 209 of 2011
- Procedural Posture
- Civil Case / Ruling on Application to Set Aside Dismissal for Want of Prosecution
- Outcome
- Application allowed; dismissal order vacated; suit reinstated.
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Dismissal for Want of Prosecution, Reinstatement of Suit, Order 17 Rule 2, Service of Notice
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Simon Njoroge Ngotho
Plaintiff
Masari Distributors Limited
Defendant
Procedural Posture
Civil Case / Ruling on Application to Set Aside Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the dismissal of the suit for want of prosecution was premature under Order 17 Rule 2 (1) of the Civil Procedure Rules.
- 2 Whether the parties were properly served with notice of dismissal.
- 3 Whether the suit should be reinstated.
Ratio Decidendi
The court found that the dismissal of the suit was premature because less than one year had elapsed since the last court order, and there was insufficient evidence that the parties were properly served with notice of the intended dismissal. The court held that no prejudice had been occasioned to the defendant by reinstating the suit, especially since the issue of delay was not raised at the last appearance. Consequently, the court vacated the dismissal order and reinstated the suit to ensure that justice is served and the matter is heard on its merits.
Court Disposition
Application allowed; dismissal order vacated; suit reinstated.
Orders
- The dismissal order made on 14th June, 2016 is hereby vacated.
- The suit is reinstated.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL CASE NO. 209 OF 2011
SIMON NJOROGE NGOTHO ……………………PLAINTIFF
VERSUS
MASARI DISTRIBUTORS LIMITED …………..DEFENDANT
RULING
The plaintiff filed a suit against the defendant following injuries sustained as a result of him alighting from a motor vehicle owned by the defendant. He blamed his injuries on the driver of the defendant. His claim was denied by the defendant.
On 14th June, 2016 the suit was dismissed for want of prosecution under Order 17 Rule 2 (1) of the Civil Procedure Rules. The record shows that the last time the suit was in court was 16th December, 2015 when both counsel for the plaintiff and the defendant appeared before Njuguna J. When the case was adjourned because the plaintiff was absent and may not have known of the hearing date as he had filed a notice to act in person. There is an order that parties take another date in the registry.
When the case came up for dismissal under the cited provisions one year had not expired from the date of the last order. It is therefore clear that the file was placed before the judge prematurely. I note from the record that both counsel for the plaintiff and the defendant did not appear on that said date. It may be safe to presume that none received the notice supposed to have been served by the registrar. Whatever the case, no prejudice can be said to have been visited upon the defendant considering that on 16th December, 2015 hardly six months before the dismissal order, that issue was not raised.
I find merit in the application and therefore the dismissal order made on 14th June, 2016 is hereby vacated and the suit reinstated. The court having certified the suit for hearing and ordered the trial to commence, the parties shall now take hearing a date in the registry. Each party shall bear their own costs.
Dated, signed and delivered at Nairobi this 6th Day of April, 2017.
A. MBOGHOLI MSAGHA
JUDGE