[2011] KEHC 2866 (KLR)
The court found that the plaintiffs were not to blame for the failure to respond to the application for dismissal, as the omission was attributable to their previous advocates. The defendants did not oppose the application for review. In the interests of justice and to allow the plaintiffs an opportunity to have...
Source-derived case information.
- Citation
- [2011] KEHC 2866 (KLR)
- Parties
- Plaintiff: Ahmed Dolal & 2 Others; Defendant: Kenya Electricity Generating Company Limited; Defendant: Anor (2nd Defendant)
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 1034 of 2005
- Procedural Posture
- Civil Application / Ruling on Application for Review and Setting Aside of Dismissal Order
- Outcome
- Application for review and setting aside of dismissal order granted. Suit reinstated.
- Legal Topics
- Review of Court Orders, Dismissal of Suit, Oil Spillage Damage, Application for Reinstatement
- 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
Ahmed Dolal & 2 Others
Plaintiff
Kenya Electricity Generating Company Limited
Defendant
Anor (2nd Defendant)
Defendant
Procedural Posture
Civil Application / Ruling on Application for Review and Setting Aside of Dismissal Order
Legal Issues
- 1 Whether the court's order of 25/5/09 dismissing the suit should be reviewed and set aside.
- 2 Whether the plaintiffs were at fault for the non-response to the dismissal application.
- 3 Whether reinstatement of the suit is justified in the circumstances.
Ratio Decidendi
The court found that the plaintiffs were not to blame for the failure to respond to the application for dismissal, as the omission was attributable to their previous advocates. The defendants did not oppose the application for review. In the interests of justice and to allow the plaintiffs an opportunity to have their case heard on the merits, the court exercised its discretion to review and set aside the dismissal order of 25/5/09. The suit was reinstated and the plaintiffs were granted 45 days to prepare the suit for trial in accordance with the Civil Procedure Rules 2010.
Court Disposition
Application for review and setting aside of dismissal order granted. Suit reinstated.
Orders
- The court's order of 25/5/09 dismissing the suit is reviewed and set aside.
- The suit is reinstated.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLICOF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CIVIL. 1034 OF 2005
AHMED DOLAL & 2 OTHERS ..........................................…………………….…………… PLAINTIFFS
VERSUS
KENYA ELECTRICITY GENERATINGCOMPANY LIMITED & ANOR ……………….…DEFENDANTS
Coram :Mwera J.
Ogeto for Plaintiff
Onono N/A for 2nd Defendant
Njeru for 1st Defendant
Njoroge court clerk
RULING
On 08/2/11 the plaintiffs filed a motion under Order 45 rule 1 of the Civil Procedure Rules and section 80 of Civil Procedure Act for an order:
i) that the court’s order of 25. 5.09 be reviewed and set aside.
This was on the ground that the applicants had their lawyer M/s Khamati Minishi & Co Advocate who in 2005 had amended the plaint herein in which the applicants claim damages due to oil spillage onto their farm from the establishment of the defendants. That firm of lawyers told the applicants that the amended plaint would be served for further proceedings. Such was not done and the defendants filed an application to dismiss the suit. M/s Khamati Minishi did not respond to the application and they did not contact the applicant’s on the same. When it came up for hearing it was allowed – hence this application. It was no mistake of the applicants to get into this state of affairs and so their prayer should be granted. The 1st plaintiff (Ahmed Dolal) swore an affidavit in support.
This application came for hearing on 8/2/11 but it was adjourned to enable the applicants to serve the respondents lawyer Mr. Onono at Garissa. When that was done, come 2. 3.11 the respondent’s lawyer did not show up and the applicants submitted on the application more or less on the same lines as was stated in the affidavit to the application. It was reiterated that the oil spillage complained of was continuously present on the plaintiffs’ property doing damage. Reinstating their suit which Khamoni J dismissed on 25/5/09 on the application of the 2nd defendant, will give opportunity to have their matter dealt with.
Having considered the above and that the applicants appear not to be those to blame in the proceedings leading to the orders of 25/5/09, and that the defendants have not opposed the present motion, orders are granted as sought. The plaintiffs have 45 days to prepare this suit as per Civil Procedure Rules 2010 for trial.
Delivered on 5/4/11.
J. W. MWERA
JUDGE