[2004] KEHC 2054 (KLR)
The court found that although the reasons for non-attendance by the applicant's counsel were not entirely satisfactory, the court retains wide discretion to do justice under the applicable rules. The main ground in opposition related to the merits of the suit, which should be determined after hearing both parties....
Source-derived case information.
- Citation
- [2004] KEHC 2054 (KLR)
- Parties
- Plaintiff: Abdikadir Salah; Defendant: Adur Dubow
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 916 of 2001
- Procedural Posture
- Civil Case / Application to Set Aside Dismissal for Non Attendance
- Outcome
- application allowed
- Judges
- JW Nyamu
- Legal Topics
- Setting Aside Orders, Dismissal for Non Attendance, Reinstatement of Suit
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Abdikadir Salah
Plaintiff
Adur Dubow
Defendant
Procedural Posture
Civil Case / Application to Set Aside Dismissal for Non Attendance
Legal Issues
- 1 Whether the order dismissing the suit for non-attendance should be set aside.
- 2 Whether the applicant has provided sufficient explanation for counsel's absence.
- 3 Whether the interests of justice require reinstatement of the suit.
Ratio Decidendi
The court found that although the reasons for non-attendance by the applicant's counsel were not entirely satisfactory, the court retains wide discretion to do justice under the applicable rules. The main ground in opposition related to the merits of the suit, which should be determined after hearing both parties. In the interest of justice, the application to set aside the dismissal was allowed to enable the matter to be heard and determined on its merits.
Court Disposition
application allowed
Orders
- The application to set aside the order dismissing the suit for non-attendance is allowed.
- The suit is reinstated for hearing on the merits.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI CIVIL CASE NO 916 OF 2001
ABDIKADIR SALAH ......................................... PLAINTIFF VERSUS ADUR DUBOW ................................................. DEFENDANT
RULING
This is an application to set aside an order dismissing the suit for non attendance by counsel. The applicant by an application dated 4th March 2004 supported by an affidavit sworn by the plaintiff’s counsel Mr Oluoch on 4th March 2004, seeks the reinstatement of suit.
The application is opposed by way of an affidavit sworn by Rose Mbugua the learned counsel for the defendant on 23rd March, 2004.
The main ground advanced in support of the application is that :-
the advocate arrived in court late because his client is based outside Nairobi and it was necessary to take instructions from him on 1st March, 2004 and that the delay was not deliberate. The applicant’s client is based in Garissa.
The main grounds raised in opposition are that the substratum of the suit has disappeared in that construction works in respect of the suit property have been completed and that the applicant\s counsel has not satisfactorily explained his absence or non appearance on 1st March 2004 when the matter was called out.
I have put the reasons articulated on behalf of each party on the scales. The main ground in opposition touches on the merit of the suit and this is a matter for determination after hearing arguments from both parties. Although the reasons for non attendance by the learned counsel are not entirely satisfactory I have a wide discretion under the applicable rule to do justice. It will be in the interest of justice to allow the application so that the matter can be heard and determined on merit.
For the above reasons the application is allowed but costs are awarded to the respondent/defendant in any event.
It is so ordered.
DATED and delivered at Nairobi this 21st day of May 2004.
J G NYAMU
JUDGE