[2005] KEHC 2428 (KLR)
The court found that although there had been delay in setting the suit down for hearing, the Plaintiff had provided plausible reasons for the delay, including a pending appeal and ongoing settlement negotiations. The Plaintiff had also taken steps to set the suit down for hearing once it became clear the Defendant...
Source-derived case information.
- Citation
- [2005] KEHC 2428 (KLR)
- Parties
- Plaintiff: Trust Bank Limited; Defendant: First American Bank Ltd; Defendant: Ajay Shah; Defendant: Praful Shah
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 852 of 2001
- Procedural Posture
- Civil Case / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- application for dismissal refused
- Judges
- DW Mbuteti
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Setting Down for Hearing
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Trust Bank Limited
Plaintiff
First American Bank Ltd
Defendant
Ajay Shah
Defendant
Praful Shah
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 16 Rule 5(a) of the Civil Procedure Rules.
- 2 Whether the Plaintiff's reasons for delay constitute sufficient cause to avoid dismissal.
Ratio Decidendi
The court found that although there had been delay in setting the suit down for hearing, the Plaintiff had provided plausible reasons for the delay, including a pending appeal and ongoing settlement negotiations. The Plaintiff had also taken steps to set the suit down for hearing once it became clear the Defendant wished to proceed. The court held that the circumstances did not justify the drastic remedy of dismissal for want of prosecution, as the interests of justice favored a determination of the issues on their merits.
Court Disposition
application for dismissal refused
Orders
- The application for dismissal of the suit for want of prosecution is refused.
- Costs of the application shall be in the cause.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
COMMERCIAL DIVISION, MILIMANI
CIVIL CASE NO. 852 OF 2001
TRUST BANK LIMITED………………………………PLAINTIFF
VERSUS
FIRST AMERICAN BANK LTD………….………….1ST DEFENDANT
AJAY SHAH…………………………………………...2ND DEFENDANT
PRAFUL SHAH………………………………………..3RD DEFENDANT
R U L I N G
This is an application (by notice of motion dated 22nd December, 2004) by the 2nd Defendant for dismissal of the Plaintiff’s suit as against him for want of prosecution. It is brought under Rule 5(a) or Order 16 of the Civil Procedure Rules (the Rules). Under that paragraph, if within three months after the close of pleadings the plaintiff, or the court of its own motion on notice to the parties, does not set down the suit for hearing, the defendant may either set down the suit for hearing or apply for its dismissal. The 2nd Defendant has elected the latter option, as he was entitled to do. I have read the supporting and replying affidavits. I have also perused the court record. Finally I have given due consideration to the submissions of the learned counsels appearing. It appears not in dispute that pleadings in this case closed some time in 2001, and further, that by the time the present application was filed neither the Plaintiff nor the court of its own motion on notice to the parties had set the suit down for hearing. It is the 2nd Defendant’s stand that this inactivity was brought by the Plaintiff’s indolence or lack of interest in prosecuting the suit. On its part the Plaintiff has offered various reasons in a long replying affidavit why the suit has not yet been prosecuted. Among those reasons in the fact that there is pending an appeal before the Court of Appeal filed by the 2nd Defendant against an order of this court that refused to stay this and other suits pending hearing and determination of Nairobi HCCC No. 2155 of 2000. It seems to me that by choosing to await the outcome of the said appeal the Plaintiff was motivated by the desire that there should be an orderly conduct of all the litigation between and involving the parties pending in the courts. At any rate, as soon as the Plaintiff learnt that the 2nd Defendant was not of the same persuasion as is evidenced by the present application it moved to set the suit down for hearing and the same is now scheduled to be heard on 25th July, 2005. It also appears from the replying affidavit that there had been negotiations going on between the parties with a view to amicably settle the matters in dispute. A court of justice will not lightly shut out a litigant from the seat of judgment. It will endeavour to determine all the issues in controversy upon a proper hearing of the action. The circumstances of this case as disclosed by the main pleadings, the supporting and replying affidavits and the submissions of the learned counsels appearing militate against granting the drastic order sought. I will refuse the application. Costs thereof shall be in the cause. Orders accordingly.
DATED AND SIGNED AT NAIROBI THIS 1ST DAY OF JUNE, 2005.
H. P. G. WAWERU
JUDGE
DELIVERED THIS…………….DAY OF JUNE, 2005.