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|Case Number:||Civil Suit 1165 of 2002|
|Parties:||EAST AFRICAN PORTLAND CEMENT CO LTD v PRECISE RENOVATORS & DECORATORS LTD & another|
|Date Delivered:||27 Nov 2009|
|Court:||High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)|
|Judge(s):||Martha Karambu Koome|
|Citation:||EAST AFRICAN PORTLAND CEMENT CO LTD v PRECISE RENOVATORS & DECORATORS LTD & another  eKLR|
|Disclaimer:||The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information|
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (MILIMANI COMMERCIAL COURTS)
Civil Suit 1165 of 2002
EAST AFRICAN PORTLAND CEMENT CO LTD……………..………PLAINTIFF
PRECISE RENOVATORS & DECORATORS LTD………..….…1ST DEFENDANT
T/A PRECISE RENOVATORS & DECORATORS…………..…..2ND DEFENDANT
A Notice to show cause why the suit should not be dismissed under Order 16 rule 2(1) was issued in this matter, it came for hearing on 13th November 2009. Counsel for the defendant supported the notice to have the suit dismissed on the grounds that no steps have been taken since 18th October, 2006. However counsel for the plaintiff opposed the notice to have the suit dismissed for want of prosecution. He relied on a detailed affidavit sworn by Shila Kahuki, a legal officer of the plaintiff.
It is contended that the court diary closed, therefore the plaintiff was not able to get a hearing date, moreover, there was default judgment against the second defendant which was entered on 21st February 2008. The plaintiff has been trying to trace the 2nd defendant to execute the decree without success. For those reasons counsel urged the court not to dismiss the suit for want of prosecution.
I have gone through the pleadings in this matter and also the record of proceedings. There were concerted efforts by the plaintiff to have this matter heard, but there is lull form 21st February 2008, when the plaintiff obtained judgment against the 2nd defendant. It is contended that the court diary has not been available and that the plaintiff has been making attempts to execute against the 2nd defendant. I am prepared to exercise my discretion and allow the plaintiff a further period of three months (3) within which to fix this matter for hearing. Failure to do so, this suit shall stand dismissed for want of prosecution with cost to the 1st defendant. The 1st defendant shall also have costs in respect of this notice to show cause.
Ruling read and signed on 27th November 2009