Geor Enterprises Limited v Diamond Trust Bank Kenya Limited [2014] KEHC 8770 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

COMMERCIAL AND ADMIRALTY DIVISION

CIVIL SUIT NO. 406 OF 2009

GEOR ENTERPRISES LIMITED….……….….……........PLAINTIFF

- VERSUS -

DIAMOND TRUST BANK KENYA LIMITED................DEFENDANT

RULING

1. The Defendant has invoked the provisions of Order 5 Rule 1 (2) and Rule 1 (6); Rule 2 (1) and Rule 2 (7), as read with Order 17 Rule 2 (3) and Order 51 Rule 1 of the Civil Procedure Rules, to ask the court to dismiss the plaintiff’s suit.

2. The defendant contends that the plaintiff failed to take out summons for over 24 months from the date when the Plaint was filed.

3. Secondly, the plaintiff is said to have failed to take steps to prosecute its case.  In other words, the defendant says that there has been a want of prosecution.

4. According to the defendant, the case was last in court on 28th October 2010 when Mugo J. dismissed the plaintiff’s applications dated 4th June 2009 and 27th October 2009, respectively.

5. It is noteworthy that the plaintiff failed to file any response to the application, even though their lawyers were duly served on 30th June 2014.

6. The plaintiff and their lawyers also failed to attend court on 31st July 2014, when the application came up for Hearing.

7. The application dated 24th June 2014 is therefore un-opposed.

8. I have perused the record of the proceedings and noted that the court dismissed the plaintiff’s application for interlocutory Reliefs.  The court did so after verifying that the reliefs sought had been overtaken by events.

9. The vehicles which were the subject matter of the applications for injunctive reliefs, had already been sold.

10. Secondly, the court held that the losses, if any, suffered by the plaintiff could be compensated by an award of damages.

11. After the plaintiff’s applications were dismissed, the plaintiff has taken no steps at all to prosecute its claim.  It is now more than four (4) years since the case was last in court.

12. Clearly, therefore, the plaintiff appears to have lost all interest in pursuing its claim.

13. Furthermore, the plaintiff never took out summons to enter appearance.  Given the lapse of more than four (4) years since the inception of the proceedings herein, it is not possible to have the summons to enter appearance re-issued.

14. For all those reasons, the plaintiff’s suit is not sustainable.  It is therefore dismissed.

15. The costs of the application dated 24th June 2014 as well as the costs of the suit are awarded to the defendant.

DATED, SIGNED and DELIVERED at NAIROBI this3rd day of December2014.

FRED A. OCHIENG

JUDGE

Ruling read in open court in the presence of

……………………………………………for the Plaintiff

………………………………………………for the Defendant.

Collins Odhiambo – Court clerk.