[2015] KEHC 1368 (KLR)
The court found that the plaintiff, having initiated the application under certificate of urgency, failed to attend court to prosecute the application on the scheduled hearing date. No explanation or representation was provided for the absence. The court determined that justice was being delayed and denied by...
Source-derived case information.
- Citation
- [2015] KEHC 1368 (KLR)
- Parties
- Plaintiff: Titus Gitau Ngugi; Defendant: Chase Bank Limited; Defendant: Ann Wanjiru Kananda
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 226 of 2015
- Procedural Posture
- Civil Case / Ruling on Interlocutory Application
- Outcome
- Application dated 17th June 2015 dismissed for non-attendance; interim injunction orders discharged; costs awarded to 1st defendant.
- Judges
- RE Aburili
- Legal Topics
- Dismissal for Non Attendance, Interlocutory Injunctions, Costs Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Titus Gitau Ngugi
Plaintiff
Chase Bank Limited
Defendant
Ann Wanjiru Kananda
Defendant
Procedural Posture
Civil Case / Ruling on Interlocutory Application
Legal Issues
- 1 Whether the plaintiff's application dated 17th June 2015 should be dismissed for non-attendance to prosecute.
- 2 Whether the interim orders of injunction should be discharged.
- 3 Who should bear the costs of the application.
Ratio Decidendi
The court found that the plaintiff, having initiated the application under certificate of urgency, failed to attend court to prosecute the application on the scheduled hearing date. No explanation or representation was provided for the absence. The court determined that justice was being delayed and denied by keeping the matter pending without prosecution. Accordingly, the court invoked Order 12 Rule 3 of the Civil Procedure Rules to dismiss the application dated 17th June 2015 for non-attendance. As a consequence, the interim orders of injunction previously granted were discharged, and costs of the application were awarded to the 1st defendant.
Court Disposition
Application dated 17th June 2015 dismissed for non-attendance; interim injunction orders discharged; costs awarded to 1st defendant.
Orders
- The application dated 17th June 2015 is dismissed for non-attendance to prosecute.
- The interim orders of injunction on record are discharged.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CIVIL CASE NO.226 OF 2015
TITUS GITAU NGUGI ……………….………………........................…..PLAINTIFF
VERSUS
CHASE BANK LIMITED ……….…………………......................1ST DEFENDANT
ANN WANJIRU KANANDA………………….....................……2ND DEFENDANT
COURT RULING
This suit and application dated 17th June 2015 were instituted under certificate of urgency and on 19th June 2015. the matter was placed before Honourable Onyancha J Duty Judge who directed that it be mentioned on 24th June 2015. On the latter date both the plaintiff and 1st defence counsels appeared and the matter was rescheduled for hearing on 6th July 2015. The 1st defendant filed his replying affidavit. The interim orders regarding motor vehicle KBW 254J were granted pending hearing on 6th July 2015.
On 6th July 2015 Mr Magara advocate for the plaintiff sought more time to file a further affidavit and the court granted him setting the matter for mention on 20th July 2015, with status quo being maintained. On 20th July 2015 all the parties advocates appeared before me. Mr Wageni had just been instructed and he indicated to court that he needed time to file a reply. In the meantime, it was reported by Mr Wageni for the 2nd defendant that his client was negotiating with 1st defendant on a settlement of this matter and the court did give the parties a mention date on 20th August 2015 before the Deputy Registrar. On 20th August 2015 the record shows that only Mr Chege for 1st defendant appeared before the Deputy Registrar. The other parties never appeared and the matter was later on the same day fixed by consent for today’s hearing of the Notice of Motion.
Mr Wageni has never filed an affidavit that he has on each occasion sought leave and been granted. On the other hand, the plaintiff is not here to prosecute the application dated 17th June 2015 and there is neither representation nor reasons given for their counsel’s absence.
In my view, justice is being delayed and denied in this matter. The plaintiff who initiated the application under certificate of urgency being absent to prosecute his application, I find no reason why the matter should be kept in abeyance. In the premises, I invoke the provisions of order 12 rule 3 of the Civil procedure Rules and dismiss the application dated 17th June 2015 for non attendance to prosecute. The orders of injunction on record are hereby discharged. The 1st defendant shall have costs of that application.
Orders accordingly.
R.E. ABURILI
JUDGE
30/9/2015