[2010] KEHC 291 (KLR)
Although both parties failed to take steps in the suit for over a year, making the suit liable to dismissal under Order XVI Rule 2(1) of the Civil Procedure Rules, the parties themselves settled the dispute amicably without involving their advocates. In such circumstances, awarding costs to either party would...
Source-derived case information.
- Citation
- [2010] KEHC 291 (KLR)
- Parties
- Plaintiff: Telkom Kenya Limited; Defendant: Stats Investments Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 480 of 2006
- Procedural Posture
- Civil Suit / Notice to Show Cause; Post Settlement, Costs Determination
- Outcome
- Suit marked as settled without any order as to costs.
- Judges
- CM Njagi
- Legal Topics
- Dismissal for Want of Prosecution, Settlement of Suit, Costs Award, Notice to Show Cause
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Telkom Kenya Limited
Plaintiff
Stats Investments Limited
Defendant
Procedural Posture
Civil Suit / Notice to Show Cause; Post Settlement, Costs Determination
Legal Issues
- 1 Whether the suit should be dismissed for want of prosecution under Order XVI Rule 2(1) of the Civil Procedure Rules.
- 2 Whether either party is entitled to costs after an out-of-court settlement.
Ratio Decidendi
Although both parties failed to take steps in the suit for over a year, making the suit liable to dismissal under Order XVI Rule 2(1) of the Civil Procedure Rules, the parties themselves settled the dispute amicably without involving their advocates. In such circumstances, awarding costs to either party would undermine the spirit of the settlement. The court therefore exercised its discretion to mark the suit as settled without any order as to costs, declining to award costs to either side.
Court Disposition
Suit marked as settled without any order as to costs.
Orders
- The suit is marked as settled.
- No order as to costs.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLICOF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
COMMERCIAL & TAX DIVISION – NAIROBI
CIVIL SUIT NO. 480 OF 2006
TELKOM KENYA LIMITED ……………………...........................................................................................................………. PLAINTIFF
VERSUS
STATS INVESTMENTS LIMITED ………………...............................................................................................................……. DEFENDANT
R U L I N G
By a Notice to Show Cause dated 16th April, 2010, the Deputy Registrar called upon the respective Counsel for the parties herein to show cause why this suit should not be dismissed under Order XVI Rule 2(1)of theCivil Procedure Rules. The Notice was based on the ground that no application had been made or step taken in the suit by either party for one year.
Mr. Elias Masika, learned Counsel for the Plaintiff, filed a replying affidavit which he personally swore on 16th June, 2010. In that affidavit, he deposed that by letters dated 14th December, 2006 and 24th July, 2008 respectively, he sought to find out from his clients the position regarding the matter and was informed that the dispute had been amicably settled between the parties.
When the matter came for the hearing of the Notice to Show Cause Ms. Karumba for the Defendant pressed strongly for costs, which Mr. Masika for the Plaintiff strenuously contested. Since each party was satisfied with the settlement, the only outstanding issue was whether the Defendant should be awarded the costs of the suit. Order XVI Rule 2(1) of theCivil Procedure Rules states as follows –
“In any suit in which no application has been made or step taken by either party for one year, the Court may give notice in writing to the parties to Show Cause why the suit should not be dismissed and if cause is not shown to its satisfaction, may dismiss the suit.”
It is notable that under this Rule, a suit is liable to be dismissed where no application has been made or step taken by either party for one year. In the instant matter, none of the parties made any application or took any step for more than one year. Prima facie, therefore, both sides were culpable. However, we should not lose sight of the fact that the suit was not dismissed. Instead, it was settled by the parties themselves without reference to their respective Advocates. In such circumstances, that it would not be proper to award any costs to either party. Such an award would only operate to soil the spirit in which the parties themselves settled the matter without raising any dust about costs.
I therefore decline to award any costs to any side, and instead direct that this suit be and is hereby marked as settled without any order as to costs.
It is so ordered.
DATEDand DELIVERED at NAIROBI this 7th day of October, 2010.
L. NJAGI
JUDGE