African Banking Corporation Ltd v Kenya Revenue Authority [2018] KEHC 10194 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI COMMERCIAL AND TAX DIVISION

HIGH COURT CIVIL CASE NO. 10 OF 2009

AFRICAN BANKING CORPORATION LTD ............. APPLICANT

-VERSUS-

KENYA REVENUE AUTHORITY .......................... RESPONDENT

RULING

1. This is a ruling in respect to the Plaintiff showing cause why this suit should not be dismissed for want of prosecution.

2. The plaint was filed on 9th January 2009. A ruling was delivered by this court on 11th March 2009 in respect to the plaintiff’s Application dated 8th January 2009. By that Application, the Plaintiff sought temporaly injunction to restrain the defendant from enforcing two agency notices both dated 30th December 2008. Although the ruling of that Application is indicatated as having been delivered on 8th Junuary 2009 by Justice Kimaru, I was unable to trace it in this file.

3. After the close of the pleading on 3rd February 2010, the Defendant took a hearing date for this matter which hearing was to take place on 7th July 2010. There is no evidence of any attendance by any party on that date.

4. The Plaintiff also fixed this case for hearing and a date was given for 28th September 2011. The case was however removed by the Senior Deputy Registrar on 26th July 2011, at a call over, because the parties failed to attend the same.

5. That was the last time that the matter was before the Court. It is because of failure of the parties to fix this matter after seven years, that the Court issued to the parties a Notice to Show Cause why this suit should not be dismissed for want of prosecution.

6. On 26th July 2018, when the parties appeared before me to show cause why the suit should not be dismissed, the Learned Advocate for the Plaintiff informed the Court that the parties had enganged in negotiation and he requested for time to contact his client, to inform the Court of the outcome of that negotiation. The Learned Advocate for the Defendant denied that there was any such negotiations. The Court adjourned the matter to enable the Plaintiff bring evidence of the negotiation.

7. On 1st October 2018, the Learned Advocate for the Plaintiff did not show to the Court any negotiation that he had alleged had been taking place. He did concede that indeed this matter was old and need to be concluded. He urged the Court not to dismissed this suit for want of prosecution.

8. As I stated at the beginning, this suit was filed in the year 2009. The last action before court was on 11th March 2009. There is no sufficient explanation given by the Plaintiff why it has failed in all of this years to prosecute this suit. It is for that reason that I find that the Plaintiff has failed to satisfactorily show cause why this suit should not be dismissed for want of prosecution. In my view Order 17 Rule 2 of the Civil Procedure Rules has been satisfied.

9. In the end I hereby order that this suit be dismissed for want of prosecution

DATED, SIGNED and DELIVERED at NAIROBI this 5th day of October, 2018.

MARY KASANGO

JUDGE

Ruling read and delivered in open court in the presence of:

Court Assistant....................Sophie

........................................... for the Applicant

........................................... for the Respondent

MARY KASANGO

JUDGE