[2015] KEELC 532 (KLR)
The court found that the plaintiff's failure to attend court was due to confusion arising from the cause list not being conclusive on the judiciary website and the transition period following the arrival of a new judge. The court accepted that this was a genuine inadvertence and exercised its discretion to set aside...
Source-derived case information.
- Citation
- [2015] KEELC 532 (KLR)
- Parties
- Plaintiff: Abdulrazak Abdulrahman Adam; Defendant: Aslam Abdulreihman Adam; Defendant: Shamin Abdulrehman Adam; Defendant: Khatijabhai Abdulrehman Adam; Defendant: Serabanu Abdulrehman Adam
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 91 of 2011
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Set Aside Ex Parte Dismissal
- Outcome
- Application allowed; ex parte dismissal set aside; costs to defendants.
- Judges
- AA Omollo
- Legal Topics
- Setting Aside Ex Parte Orders, Non Attendance, Judicial Discretion, Cause List Irregularity
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Abdulrazak Abdulrahman Adam
Plaintiff
Aslam Abdulreihman Adam
Defendant
Shamin Abdulrehman Adam
Defendant
Khatijabhai Abdulrehman Adam
Defendant
Serabanu Abdulrehman Adam
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Ex Parte Dismissal
Legal Issues
- 1 Whether the ex parte dismissal of the plaintiff's suit for non-attendance should be set aside.
- 2 Whether the plaintiff's failure to attend court was excusable under the circumstances.
Ratio Decidendi
The court found that the plaintiff's failure to attend court was due to confusion arising from the cause list not being conclusive on the judiciary website and the transition period following the arrival of a new judge. The court accepted that this was a genuine inadvertence and exercised its discretion to set aside the ex parte dismissal. The court held that any prejudice to the defendants could be compensated by an award of costs, and thus the interests of justice required that the plaintiff be allowed to prosecute his suit.
Court Disposition
Application allowed; ex parte dismissal set aside; costs to defendants.
Orders
- The orders of the court issued on 19.11.2014 dismissing the plaintiff's suit are set aside.
- The cost of the motion is awarded to the defendants.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
E.L.C. 91 Of 2011
ABDULRAZAK ABDULRAHMAN ADAM...................PLAINTIFF
VERSUS
ASLAM ABDULREIHMAN ADAM......................1ST DEFENDANT
SHAMIN ABDULREHMAN ADAM.....................2ND DEFENDANT
KHATIJABHAI ABDULREHMAN ADAM...........3RD DEFENDANT
SERABANU ABDULREHMAN ADAM................4TH DEFENDANT
RULING
1. The motion for determination is one dated 25th November 2014 seeking to set aside the exparte proceedings of 20. 11. 2014 which dismissed the plaintiff's suit for non- attendance. It is supported by the grounds on the face of it and the affidavit of Mansur Satchu advocate. The application is opposed by the replying affidavit sworn by Shamin Abdulrehman Adam filed and on record.
2. Mr. Mutiso for the applicant submitted that although they were served with a hearing notice on 24. 7.2014, they did not attend court for two reasons. First, this matter was not in the cause list that was posted in the judiciary website. Secondly that he received information that the new judge was not hearing any matters except for extension of the interim orders. He pleaded that the inadvertence was highly regrettable and the plaintiff ought to be given his day in court.
3. Mr. Sitonik for the Defendant/Respondent submitted that the plaintiff does not deserve the favourable exercise of this court's discretion. He stated that the defendant also saw the cause list posted in the web but took it upon himself to attend court on 19. 11. 2014 alongside other parties in seven matters that were listed. The advocate further submitted that the plaintiff has never been keen to prosecute this case as he is enjoying the interim orders.
4. I have considered the issues at hand. The plaintiff admits not attending court on 19. 11. 2014 but says the inadvertence was because the matter not was in the daily cause list posted in the web (judiciary website). This is confirmed by the defendant’s counsel who submits that e-causelist is not conclusive. This court began her sitting in Mombasa on 18. 11. 14 having reported on transfer. It is therefore possible that due to the transition period the parties could be unsure whether hearings would go on or not. Therefore on this account only and on the fact that the cause list for 19. 11. 2014 posted in the web was not conclusive I find this is a matter which is deserving of the court's discretion. The prejudice if any to be suffered by the defendants can be compensated by costs.
5. In the result the motion is allowed and the orders of this court issued on 19. 11. 2014 dismissing the plaintiff's suit be and is hereby set aside. The cost of the motion is awarded to the defendants.
Dated and delivered in open court at Mombasa this 17th day of April. 2015.
A. OMOLLO
JUDGE