[2008] KEHC 1943 (KLR)
The court held that the responsibility to set the matter down for directions in an originating summons lies with either party, not solely the plaintiff/respondent. Since directions had not yet been taken, the application for dismissal for want of prosecution was premature. The court emphasized that only after...
Source-derived case information.
- Citation
- [2008] KEHC 1943 (KLR)
- Parties
- Plaintiff: Tropical Nector Ltd; Defendant: Future Estates Ltd
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 1218 of 2007
- Procedural Posture
- Civil Case / Ruling on Application to Dismiss for Want of Prosecution
- Outcome
- application dismissed with costs to the respondent
- Legal Topics
- Dismissal for Want of Prosecution, Directions in Originating Summons, Removal of Caveat
- Source Language
- english
Source-derived case record
Summary, issues, holding and outcome
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Parties
Tropical Nector Ltd
Plaintiff
Future Estates Ltd
Defendant
Procedural Posture
Civil Case / Ruling on Application to Dismiss for Want of Prosecution
Legal Issues
- 1 Whether the suit should be dismissed for want of prosecution due to inactivity for over three months.
- 2 Whether it was solely the responsibility of the plaintiff/respondent to set the matter down for directions.
- 3 Whether the application for dismissal was premature before directions were taken.
Ratio Decidendi
The court held that the responsibility to set the matter down for directions in an originating summons lies with either party, not solely the plaintiff/respondent. Since directions had not yet been taken, the application for dismissal for want of prosecution was premature. The court emphasized that only after directions are given and there is no activity for three months can such an application be properly made. Accordingly, the application to dismiss the suit was dismissed with costs to the respondent.
Court Disposition
application dismissed with costs to the respondent
Orders
- The application to dismiss the suit for want of prosecution is dismissed.
- Costs awarded to the respondent.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Civil Case 1218 of 2007
TROPICAL NECTOR LTD …………………………….. PLAINTIFF
VERSUS
FUTURE ESTATES LTD ………………………….. DEFENDANT
RULING
APPLICATION TO DISMISS SUIT
FOR WANT OF PROSECUTION 23 OCTOBER 2007
1: Background
1. The main Originating Summons prays for the removal of a caveat. It was filed on 7 November 2003.
2. By an application of 23 October 2007, the advocate for the respondent stated that the said case ought to be dismissed for want of prosecution. Since the matter had been last to court no action had been taken for over 3 months. The said respondent and applicant in the notice of motion stated that the suit be dismissed.
II: In reply
3. The applicant respondent in the applications sated that the suit was partly finalized. He obtained his orders for removal of the caveat what awaits is the issue of damages. Nonetheless he was asked to go for direction of the suit but failed to do so. It is this inactivity that the respondent/applicant takes issue with including that of directions.
III: Opinion
4. The court noted that the next step in this matter was that of directions under Order 36 r 8 a 12 Civil Procedure Rules. This is an application that is filed by either party. That is the reasons why the words “may” is included is to signify that either party may take direction.
5. The advocate for the respondent should have set the matter down for direction. It is not necessarily the applicant/respondent alone who does this.
6. Once the matter is set down for directions and no activity is done within 3 months then should an application be filed for want or prosecution and not before.
7. I accordingly dismiss the application with costs to the respondent.
DATED THIS 12TH DAY OF JUNE 2008 AT NAIROBI.
M.A. ANG’AWA
JUDGE
F.M. Mulwa of F.M. Mulwa & Co. Advocates for the plaintiff/respondent - present
K. Waweru & Co. Advcoates for 2nd defendant/respondent - present
P.O. Mungla of Rachier & Amollo & Co. Advocates for the 1st defendant/applican