[2014] KEHC 6780 (KLR)
The court found that although the applicant's absence was attributed to his advocate's mistake, the overall circumstances—including the six-year delay since filing the motion and the seven-month delay in seeking to set aside the dismissal—demonstrated a lack of diligence and interest in prosecuting the matter. The...
Source-derived case information.
- Citation
- [2014] KEHC 6780 (KLR)
- Parties
- Applicant: Abiud Kitui Wanakai; Respondent: The Chief Magistrate, Kibera Law Courts; Respondent: The Director of Criminal Investigations Department; Respondent: The Commissioner of Police; Respondent: The Attorney General
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 461 of 2008
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Set Aside Dismissal Order
- Outcome
- application dismissed with costs
- Judges
- DAS Majanja
- Legal Topics
- Setting Aside Orders, Judicial Review Procedure, Court Discretion, Dismissal for Nonattendance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Abiud Kitui Wanakai
Applicant
The Chief Magistrate, Kibera Law Courts
Respondent
The Director of Criminal Investigations Department
Respondent
The Commissioner of Police
Respondent
The Attorney General
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Dismissal Order
Legal Issues
- 1 Whether the court should exercise its discretion to set aside the dismissal order made on 7th August 2013.
- 2 Whether the applicant's absence was excusable due to advocate's mistake.
- 3 Whether the delay in filing the application to set aside was justified.
Ratio Decidendi
The court found that although the applicant's absence was attributed to his advocate's mistake, the overall circumstances—including the six-year delay since filing the motion and the seven-month delay in seeking to set aside the dismissal—demonstrated a lack of diligence and interest in prosecuting the matter. The court concluded that its discretion to set aside the dismissal order was exhausted and that reinstating the case would not serve the interests of justice. The application to set aside the dismissal was therefore dismissed with costs.
Court Disposition
application dismissed with costs
Orders
- The Notice of Motion dated 17th November 2014 is dismissed with costs.
Full Case Text
Judgment text and source record
22 paragraphs
IN THE HIGH COURT AT NAIROBI
MILIMANI LAW COURTS
JUDICIAL REVIEW DIVISION
MISC. APPL. NO. 461 OF 2008
BETWEEN
ABIUD KITUI WANAKAI …......................................... APPLICANT
AND
THE CHIEF MAGISTRATE
KIBERA LAW COURTS .....................................1ST RESPONDENT
THE DIRECTOR OF CRIMINAL
INVESTIGATIONS DEPARTMENT..............2ND RESPONDENT
THE COMMISSIONER OF POLICE ................ 3RD RESPONDENT
THE ATTORNEY GENERAL ..............................4TH RESPONDENT
RULING
By the Notice of Motion dated 17th February 2013 the ex-parte applicant seeks an order that the orders of 7th August 2013 be set aside and the Motion seeking orders of judicial review dated 11th November 2008 be fixed hearing.
It is not is dispute that when the said Motion came up for hearing on 7th August 2013, counsel for the ex-parte applicant had been served with a hearing notice. In the circumstances, I dismissed the application with costs in the absence of the applicant and his advocate.
The applicant now seeks the Court’s discretion to set aside the dismissal order on the ground that the mistake was one occasioned by the advocate and not his client.
In my view this may be a good reason but the Court has to look at the whole circumstances. In this case, the Motion for judicial review was filed in 2008, about 6 years ago. After the dismissal, the application to set aside was filed about 7 months later. A diligent client would have in the circumstances taken an interest in his case to ensure that it is prosecuted. His attitude appears to stem from either disinterest or as his counsel submitted, an opportunity for him to settle certain liabilities afforded by the shield provided by pending proceedings and the existing orders.
My discretion is exhausted. This case cannot be allowed back on the court rolls. The Notice of Motion dated 17th November 2014 is dismissed with costs.
DELIVERED and DATED at NAIROBI this 4th March 2014
D.S. MAJANJA
JUDGE