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ELCPartially AllowedHCCC (No. not stated on judgment)· [2014] KEELC 524 (KLR)

Ibrahim Athman Said v Ibrahim Abdille Abdullah & another [2014] KEELC 524 (KLR)

High Court of Kenya
14 March 2014
JMJ. M. Mutungi
1,351 words in judgment
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The bottom line

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What this practically means

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Executive summary

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The plaintiff moved the court by Notice of Motion dated 8th May 2013 under Order 12 Rule 7 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act seeking setting aside of the orders of 3rd February 2012 dismissing his suit for want of prosecution and reinstatement of the suit. The application was supported by the plaintiff's affidavit deponing that his Advocate was never served with the Notice to Show Cause issued by a letter dated 23rd December 2011 and only learnt of the dismissal when attempting to file a further application. The 2nd Defendant opposed, outlining the plaintiff's laxity in prosecuting the suit, but the court record showed no return of service or other evidence that the Notice to Show Cause was served on the plaintiff's Advocate, and no inquiry into service was made before dismissal. The court held that under Order 17 Rule 1 the court must be satisfied that the notice was served on the parties before dismissing a suit, since the essence of the notice is to afford the party an opportunity to show cause. Relying on Associated Warehouse Co. Ltd v Trust Bank Ltd, the court found the plaintiff was not afforded that opportunity, and although the plaintiff had been dilatory, the dismissal could not stand. The court set aside the dismissal order of 3rd February 2012, reinstated the suit, ordered the plaintiff to pay the defendants the costs of the application, and directed compliance with Order 11 within 90 days to facilitate expeditious disposal.

Key legal issues

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01

Whether service of the notice to show cause is a precondition to dismissal of a suit for want of prosecution under Order 17 Rule 1

Holding

Service of the notice is a precondition; the court must inquire and be satisfied that the notice was served before dismissing a suit

Reasoning

Order 17 Rule 1 envisages that notice in writing be given to the parties. The essence of requiring notice is to afford the party an opportunity to appear and show cause against dismissal. In this case there was no return of service, no stamped copy of the notice, and the record did not show any inquiry into service. The Advocate's subsequent conduct in seeking to amend the plaint corroborated that he was unaware of the dismissal. Dismissal without proof of service could therefore not stand.

p. 2
02

Whether the dismissal of the plaintiff's suit on 3rd February 2012 should be set aside

Holding

The dismissal was set aside and the suit reinstated because the plaintiff was not afforded the opportunity to show cause

Reasoning

There was no evidence the plaintiff's Advocate was served with the Notice to Show Cause dated 23rd December 2011. The Advocate's attempt to file an application to amend the plaint on 11/4/2013 was consistent with his denial of service. Although the plaintiff had been dilatory, the dismissal without opportunity to show cause could not stand, and the court invoked the overriding objective under Article 159 of the Constitution and sections 1A and 1B of the Civil Procedure Act to reinstate the suit for determination on merit.

p. 3

Legal principles established

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  • Before a court dismisses a suit for want of prosecution under Order 17 Rule 1, it must satisfy itself that the notice to show cause was served on the parties
  • A dismissal order made without the affected party being afforded an opportunity to show cause will be set aside at that party's instance

Court orders

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  1. 1.The court's order made on 3rd February 2012 dismissing the plaintiff's suit is set aside and the suit is reinstated
  2. 2.The Plaintiff shall pay the Defendants the costs of the application
  3. 3.Parties to comply with the provisions of Order 11 of the Civil Procedure Rules within 90 days from the date of the ruling

Authorities

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Legislation

  • Constitution of KenyaArticle 159
  • Civil Procedure ActSection 3A
  • Civil Procedure ActSections 1A and 1B
  • Civil Procedure RulesOrder 12 Rule 7
  • Civil Procedure RulesOrder 17 Rule 1
  • Civil Procedure RulesOrder 11
  • Civil Procedure Rules (repealed)Order 16 Rule 2(1)

Cases cited (1)

  • ASSOCIATED WAREHOUSE CO. LTD & OTHERS – VS- TRUST BANK LTD
    HCCC NO. 1266 of 1999 (unreported)
Jurisdiction invoked
Order 12 Rule 7 of the Civil Procedure Rules, Section 3A of the Civil Procedure Act and the inherent jurisdiction of the court

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (14)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Ibrahim Athman Said v Ibrahim Abdille Abdullah & another [2014] KEELC 524 (KLR)", Case Analysis (2014). HCCC (No. not stated on judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/524/eng@2014-03-14

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.