[2014] KEHC 3605 (KLR)
The court found that there was recent activity in the matter, specifically an invitation by the plaintiff's advocates to the defendant's advocates to fix a pre-trial hearing, which indicated that the parties were actively pursuing the prosecution of the suit. As such, the threshold for dismissal for want of...
Source-derived case information.
- Citation
- [2014] KEHC 3605 (KLR)
- Parties
- Plaintiff: Volex Contractors Limited; Respondent: National Water Conservation & Pipeline Corporation
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 772 of 2010
- Procedural Posture
- Civil Case / Ruling on Notice to Show Cause for Dismissal for Want of Prosecution
- Outcome
- Notice to show cause set aside; suit to proceed to full hearing.
- Judges
- DO Ogembo
- Legal Topics
- Dismissal for Want of Prosecution, Order 17 Rule 2, Pre Trial Directions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Volex Contractors Limited
Plaintiff
National Water Conservation & Pipeline Corporation
Respondent
Procedural Posture
Civil Case / Ruling on Notice to Show Cause for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the suit should be dismissed for want of prosecution under Order 17 Rule 2 of the Civil Procedure Rules 2010.
- 2 Whether there was sufficient recent activity to justify allowing the suit to proceed.
Ratio Decidendi
The court found that there was recent activity in the matter, specifically an invitation by the plaintiff's advocates to the defendant's advocates to fix a pre-trial hearing, which indicated that the parties were actively pursuing the prosecution of the suit. As such, the threshold for dismissal for want of prosecution under Order 17 Rule 2 of the Civil Procedure Rules 2010 was not met. The court exercised its discretion to set aside the notice to show cause and directed the parties to comply with pre-trial directions within 60 days, allowing the suit to proceed to full hearing.
Court Disposition
Notice to show cause set aside; suit to proceed to full hearing.
Orders
- The Notice to Show Cause dated 19th May 2014 is set aside.
- The matter shall proceed to full hearing.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI COMMERCIAL &ADMIRALTY DIVISION
CIVIL CASE NO. 772 OF 2010
VOLEX CONTRACTORS LIMITED :::::::::::::::::::::::::::: PLAINTIFF
-VERSUS-
NATIONAL WATER CONSERVATION & PIPELINE CORPORATION :::::::::::::: RESPONDENT
R U L I N G
This Ruling is in relation to a Notice to Show Cause dated 19th May 2014 seeking to dismiss the suit for want of prosecution under Order 17 Rule 2 of the Civil Procedure Rules 2010.
Both the Plaintiff and the Defendant have filed affidavits in court on 9th July 2014 and 11th July 2014 respectively. Both parties oppose the Notice to Show Cause and want the suit to proceed to its logical conclusion on its merits.
I have noted that as late as 28th May 2014 there was an activity on file when the firm of S. Musalia Mwenesi Advocates invited the Defendant’s advocates on 5th June 2014 to fix a pre-trial hearing for the matter. However, that could not happen since by that date this matter was already listed for dismissal.
In consideration of above factors I now set aside the said Notice to Show Cause and order that this matter shall proceed to full hearing. I direct the parties to comply with order 11 and pre-trial directions within 60 days from today. The matter will be mentioned to confirm compliance on 29th September 2014.
Orders accordingly.
DATED, READ AND DELIVERED AT NAIROBI
THIS 31ST DAY OF JULY 2014
E. K. O. OGOLA
JUDGE
PRESENT:
Onindo for Plaintiff
No appearance for Respondent
Teresia – Court Clerk