[2001] KEHC 496 (KLR)
The court found that the requirements of Order XVI Rule 5 had not been met because the suit had not been adjourned generally; instead, it was already listed for hearing on a future date. The absence of a hearing on the previously scheduled date did not automatically bring the matter within the ambit of Order XVI...
Source-derived case information.
- Citation
- [2001] KEHC 496 (KLR)
- Parties
- Plaintiff: Standard Chartered Bank Kenya Ltd.; Defendant: United Coreboard Products Ltd.; Defendant: Kunvarji Shivji Varsani; Defendant: Shamji Shivji Varsani; Defendant: Dr. Naran Shivji Varsani
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 5226 of 1989
- Procedural Posture
- Civil Case / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- application dismissed
- Judges
- T Mbaluto
- Legal Topics
- Dismissal for Want of Prosecution, Case Management, Adjournment, Hearing Dates
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Standard Chartered Bank Kenya Ltd.
Plaintiff
United Coreboard Products Ltd.
Defendant
Kunvarji Shivji Varsani
Defendant
Shamji Shivji Varsani
Defendant
Dr. Naran Shivji Varsani
Defendant
Procedural Posture
Civil Case / Ruling on Application for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the suit should be dismissed for want of prosecution under Order XVI Rule 5 of the Civil Procedure Rules.
- 2 Whether the plaintiff's actions constituted a failure to prosecute the suit diligently.
Ratio Decidendi
The court found that the requirements of Order XVI Rule 5 had not been met because the suit had not been adjourned generally; instead, it was already listed for hearing on a future date. The absence of a hearing on the previously scheduled date did not automatically bring the matter within the ambit of Order XVI Rule 5. Therefore, the application for dismissal for want of prosecution was not suitable at this stage. The court emphasized that the plaintiff should be allowed to prosecute the suit as scheduled, and if the plaintiff fails to do so, the application for dismissal could be renewed.
Court Disposition
application dismissed
Orders
- The application for dismissal for want of prosecution is dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
MILIMANI LAW COURTS
civ case 5226 of 89
STANDARD CHARTERED BANK KENYA LTD. ……… PLAINTIFF
VERSUS
UNITED COREBOARD PRODUCTS LTD. ……….. 1ST DEFENDANT
KUNVARJI SHIVJI VARSANI …………………….. 2ND DEFENDANT
SHAMJI SHIVJI VARSANI ………………………… 3RD DEFENDANT
DR. NARAN SHIVJI VARSANI ……………………. 4TH DEFENDANT
RULING
The 4th defendant has brought this application under Order XVI Rule 5 of the Civil Procedure Rules for dismissal of the suit filed by the plaintiff against him on the ground that “8 months after the suit was listed for hearing the plaintiff has taken no steps to set it down for hearing thereafter.” I must observe that this ground is not very clear. In my view it does not conform with the requirements of O. XVI Rule 5.
The record of this suit shows that prior to the lodging, on 21. 3.2000, of the application, the plaintiff had taken a hearing date on 23. 2.99 and the suit was listed to be heard on 8th and 9th June 1999. Though the record is completely silent as to what happened on that date, it is more than clear that no hearing took place. Given those circumstances it cannot be said that the suit was adjourned generally so that the matter can now come within subrule 5 of O. XVI. Consequent upon that, though I share a lot of concern with the 4th defendant regarding the plaintiff’s lack of diligency in prosecuting the suit, I must say that I do not consider it a suitable matter for dismissal for want of prosecution. I say so because I now see that the suit is listed for hearing on 29. 5.2001. Given that position, I think the applicant should be allowed to prosecute its suit. And quite obviously in the event the plaintiff is not able to prosecute the suit as arranged, then the applicant can renew his application for dismissal.
In view of what I have stated above, the application is dismissed but without any order as to costs.
Dated at Nairobi this 26th day of January, 2001.
T. MBALUTO
JUDGE