Smith and Others v Wessels (Civil Case No. 48 of 1927) [1927] EACA 8 (1 January 1927)

Before PICKERING, J.

## M. P. SMITH AND TWO OTHERS n.

## ENGELA WESSELS. C. C. $48/1927$ .

- Civil Procedure Rules, 1927-Order 22, withdrawal and adjustment of suit. - Held: -That although a Summons has been issued and served on the defendant as provided in Order 5, Rule 1, (1) (b), the suit had not<br>been set down for hearing by the plaintiff in the manner con-<br>templated in Order 9, Rule 10, and that the Plaintiff was therefore at liberty to discontinue the suit.

ORDER.—This matter was argued before me at considerable length when I was on circuit and I regret the delay in communicating a ruling to the parties. In this suit the plaintiff filed a suit by presenting a plaint in a District Registry and as is provided by Order V, Rule 1 (1) $(b)$ , a summons was issued and served on the defendant ordering him to appear and answer the claim on a named day. Under Order VIII, Rule 1, the Court required the defendant to file his defence within a prescribed time. The defendant lodged his defence, whereupon after negotiation the plaintiff filed a notice of discontinuance. The plaintiff claims that he was entitled to file such a notice and that he in fact did so under Order XXII, Rule 1. The defendant's advocate refused to allow the suit to be taken out of the list of the suits to be dealt with at the Eldoret Sessions. $H_{\alpha}$ contends that when a plaintiff has caused a summons to be issued under Order V, Rule 1 (1) (b), that by reason of Order IX, Rule 11, the suit must be taken to have been set down for hearing by the plaintiff. I fully recognize the difficulty of reconciling phrases in our local rules with a position which is regular under these rules but which was never contemplated by the men who drafted and which could of course never arise under the Rules of the Supreme Court in England. I propose to answer the question propounded to me by making two assertions. The words in Order XXII, Rule 1, "before taking any other proceeding " must refer to some act subsequent to the institution of the suit. The handing in of a plaint cannot in my opinion be "any other proceeding." Secondly the words in Order XXII, Rule 2, "Set down for hearing" relate to an act

such· as is contemplated \_in Order II, Rule 10. In my opinion this suit was not set down by the plaintiff for hearing within the meaning of these words in Order XXII, Rule 2: nor before serving **a** notice of discontinuance did the plantiff, so it seems to me, " take any other proceeding." For the reasons given I direct that this -suit was · discontinued by the plaintiff on the 20th October and that the defendant can lodge his bill of costs **up** to and including the receipt of that not,ice. The ~sts of the appearance in Court on th\_e 26-10-27 must be borne by the defendant.