Redhill Holdings Ltd v Heritage A.I.I,Insurance & 2 others [2004] KEHC 1588 (KLR)

IN THE REPUBLIC OF KENYA AT NAIROBI

MILIMANI COMMERCIAL COURTS

CIVIL CASE NO 1757 OF 1999

REDHILL HOLDINGS LTD …………………….………… PLAINTIFF

VERSUS

HERITAGE A. I. I. INSURANCE CO LTD …….….. 1ST DEFENDANT

SECURICOR LTD …………………………..…..…… 2ND DEFENDANT

CIRCUIT GUARDS LTD …………...………….……. 3RD DEFENDANT

RULING

application filed by the 1st and 2nd Defendants dated 8th December, 2003. I have also listened to the oral submissions in support of the application. I have also seen the Grounds of Opposition filed by Murgor & Murgor Advocates for the Plaintiff and Miss Sande’s submissions in opposition to the defendant’s application aforesaid.

The reason given for failure to take further steps in the prosecution of this case is that the Directors of the Plaintiff are out of the country. This fact is not supported by any affidavit by the said directors. It is not disclosed when the directors left the country. It is also not disclosed when the said directors will be back in the country.

Under the circumstances, the 1st and 2nd defendants were perfectly entitled to apply for the dismissal of this suit under Order XVI Rule 5 (d). The Plaintiff has taken no action to prosecute this suit since 8th July, 2002. On this date it is recorded that “one witness of the 1st defendant was out of the country.”

This alone should not have made the Plaintiff fail to fix their case for hearing.

Given the circumstances of this case, I hold that it is unfair to burden the defendant with this suit particularly as there is no explanation as to when the Plaintiff’s directors will return to this country. I am not satisfied that this court’s discretion should be exercised in favour of the Plaintiff. The suit is accordingly dismissed with costs under Order XVI Rule 5 (d). It is so ordered.

F. AZANGALALA

JUDGE

28. 1.2004