Okumu v Gyto Success Company Limited (Cause 507 of 2018) [2024] KEELRC 1789 (KLR) (5 July 2024) (Ruling)

Summary at a glance

Facts

The claimant sought an order to set aside the dismissal of his suit for want of prosecution. The claimant argued that his counsel failed to diarize the hearing date, and he was keen to attend court. The respondent opposed the application, stating that the claimant had not properly served the respondent with summons and had not provided proof of service.

Issues

• Whether the claimant's counsel failed to diarize the hearing date
• Whether the claimant was diligent in prosecuting the suit

Reasoning

The Court found that the claimant's conduct was not diligent in serving the respondent with summons and providing proof of service. The Court exercised its discretion to set aside the dismissal order, but only on terms.

Outcome

The suit was set down for hearing within 30 days of this ruling. In default, the suit shall stand dismissed for want of prosecution. The claimant shall pay the respondent thrown away costs of Kshs. 5,000/- before the hearing of the suit on a date to be scheduled before the Deputy Registrar.

Orders

• The suit be set down for hearing within 30 days of this ruling
• In default, the suit shall stand dismissed for want of prosecution
• The claimant shall pay the respondent thrown away costs of Kshs. 5,000/- before the hearing of the suit on a date to be scheduled before the Deputy Registrar.

Remedies

• Costs of Kshs. 5,000/- to be paid by the claimant before the hearing of the suit on a date to be scheduled before the Deputy Registrar.