[2013] KEHC 5310 (KLR)
The court held that the plaintiff failed to comply with the order of 8th March 2012 requiring deposit of KShs 5,000,000 as security for costs within 30 days, resulting in automatic dismissal of the suit by operation of that order. The plaintiff's subsequent application for extension of time was filed after the suit...
Source-derived case information.
- Citation
- [2013] KEHC 5310 (KLR)
- Parties
- Plaintiff: WOG Technologies (P) Limited; Defendant: Agro Chemical and Food Company Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 435 of 2011
- Procedural Posture
- Civil Case / Ruling on Application to Set Aside Dismissal and Reinstate Suit
- Outcome
- application dismissed with costs to the defendant
- Judges
- DW Mbuteti
- Legal Topics
- Security for Costs, Dismissal for Non Compliance, Setting Aside Orders, Reinstatement of Suit
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
WOG Technologies (P) Limited
Plaintiff
Agro Chemical and Food Company Limited
Defendant
Procedural Posture
Civil Case / Ruling on Application to Set Aside Dismissal and Reinstate Suit
Legal Issues
- 1 Whether the court should set aside the order of formal dismissal of the suit for failure to deposit security for costs as ordered.
- 2 Whether the suit should be reinstated after automatic dismissal for non-compliance with a court order.
- 3 Whether the plaintiff provided sufficient grounds for review or setting aside the dismissal.
Ratio Decidendi
The court held that the plaintiff failed to comply with the order of 8th March 2012 requiring deposit of KShs 5,000,000 as security for costs within 30 days, resulting in automatic dismissal of the suit by operation of that order. The plaintiff's subsequent application for extension of time was filed after the suit had already stood dismissed, rendering it academic. The formal order of dismissal dated 25th April 2012 was superfluous, as the dismissal had already occurred by operation of law. The court found no proper grounds for review or setting aside the dismissal, as the plaintiff's failure to act within the prescribed time was not excusable. Consequently, the application to set aside...
Court Disposition
application dismissed with costs to the defendant
Orders
- The notice of motion dated 17th July 2012 is dismissed with costs to the defendant.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
High Court at Nairobi (Nairobi Law Courts)
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WOG TECHNOLOGIES (P) LIMITED......................................................................PLAINTIFF
VERSUS
AGRO CHEMICAL AND FOOD COMPANY LIMITED.......................................DEFENDANT
R U L I N G
1. In a ruling dated and delivered on 8th March 2012 upon an application by the defendant for security for its costs of the suit, the court (Khaminwa, J) allowed the application and ordered the Plaintiff to deposit KShs 5,000,000/00 into a joint interest-earning account in the names of both parties’ respective advocates in a reputable Kenyan Bank within 30 days of delivery of the ruling, “failing which (the) suit shall stand dismissed”.
2. As it happened, the Plaintiff made no such deposit. By operation of the aforesaid order of 8th March 2012 the suit stood dismissed on 8th April 2012. To remove any doubt, the Plaintiff sought and obtained on 25th April 2012 an order formally dismissing the suit for failure to comply with the order of 8th March 2012.
3. In the meantime the Plaintiff had filed on the 19th April 2012 an application by notice of motion dated 17th April 2012 seeking the main order of stay of the order of 8th March 2012 and all subsequent proceedings pending hearing and determination of an intended appeal against that order. Needless to say, that application was academic in view of the wording of the default clause of the order of 8th March 2012.
4. Three months later the Plaintiff applied by notice of motion dated 17th July 2012seeking the main order that the order of formal dismissal of the suit of 25th April 2012 be set aside and the suit be reinstated. There is an additional prayer for the Plaintiff’s application by notice of motion dated 17/4/2012 (for extension of time within which to deposit the security) be set down for hearing on merit. That application of 17th July 2012 is the subject of this ruling.
5. I have considered the submissions of the learned counsels appearing. I have also perused the court file and have noted the exact wording of the order of 8th March 2012. That order provided in effect that the suit would stand automatically dismissed in the event of the Plaintiff failing to deposit the security of KShs 5,000,000/00 within 30 days from 8th March 2012. So, upon realizing that it would not be able to make the deposit as ordered, and wishing to seek for enlargement of the 30 days within which to make the deposit, it was incumbent upon the Plaintiff to apply for such enlargement of time before expiry of the 30 days.
6. The Plaintiff did not apply for enlargement of time until it filed its notice of motion dated 17th April 2012 on 19th April 2012. By that time, by operation of the order of 8th March 2012 the suit stood dismissed. The order of 25th April 2012 formally dismissing the suit did not alter the fact that the suit already stood dismissed on or about 8th April 2012. The said order of 25th April 12 was thus unnecessary and superfluous.
7. The Plaintiff was thus in disobedience of the order of the court of 8th March 2012. The consequence of that disobedience was that its suit stood dismissed on or about 8th April 2012. As already noted, the Plaintiff ought to have sought enlargement of the time within which to deposit the security ordered before expiry of the 30 days set by the court. It did not.
8. The main order sought for setting aside the order of 25th April 2012 is in the nature of a review. No proper ground has been advanced upon which the court can properly set aside the dismissal of the suit, which dismissal was the natural consequence of the Plaintiff’s own failure to obey the court order. I find no merit in the notice of motion dated 17th July 2012. It is dismissed with costs to the Defendant. It is so ordered.
DATED AND SIGNED AT NAIROBI THIS 23RD DAY OF JANUARY 2013
H. P. G. WAWERU
JUDGE
DELIVERED AT NAIROBI THIS 25TH DAY OF JANUARY 2013