[2015] KEHC 2756 (KLR)
The court found that the Defendant's failure to attend court on 2nd June 2015 was due to an inadvertent mistake by its advocate, specifically the failure to diarise the date. Given that the suit was recently filed and the absence was not intentional, the court determined that there was sufficient reason to review...
Source-derived case information.
- Citation
- [2015] KEHC 2756 (KLR)
- Parties
- Plaintiff: Ahmed Sheikh Amin Msellem; Defendant: Kenya Power & Lighting Company Ltd
- Court
- High Court
- Court Station
- High Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 35 of 2015
- Procedural Posture
- Civil Case / Ruling on Application for Review of Directions
- Outcome
- Application for review allowed; previous orders set aside; Defendant granted leave to file Replying Affidavit.
- Judges
- OA Angote
- Legal Topics
- Review of Court Orders, Setting Aside Orders, Affidavit Evidence, Directions on Hearing
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ahmed Sheikh Amin Msellem
Plaintiff
Kenya Power & Lighting Company Ltd
Defendant
Procedural Posture
Civil Case / Ruling on Application for Review of Directions
Legal Issues
- 1 Whether the court should review and set aside its order of 2nd June 2015 directing the hearing to proceed as unopposed by affidavit evidence.
- 2 Whether the Defendant should be granted leave to file a Replying Affidavit and defend the Originating Summons.
Ratio Decidendi
The court found that the Defendant's failure to attend court on 2nd June 2015 was due to an inadvertent mistake by its advocate, specifically the failure to diarise the date. Given that the suit was recently filed and the absence was not intentional, the court determined that there was sufficient reason to review and set aside its previous order. The court exercised its discretion under Order 45 Rule 1 of the Civil Procedure Rules to allow the Defendant an opportunity to defend the suit by filing a Replying Affidavit within fourteen days. The court also ordered that each party bear its own costs, emphasizing fairness and the right to be heard.
Court Disposition
Application for review allowed; previous orders set aside; Defendant granted leave to file Replying Affidavit.
Orders
- The orders of 2nd June 2015 are set aside.
- The Defendant shall file and serve a Replying Affidavit within fourteen (14) days from the date of this Ruling.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MALINDI
ELC CIVIL CASE NO.35 OF 2015 (OS)
AHMED SHEIKH AMIN MSELLEM...........................................................................PLAINTIFF
=VERSUS=
KENYA POWER & LIGHTING COMPANY LTD.....................................................DEFENDANT
R U L I N G
1. What is before me is the Application by the Defendant dated 26th June, 2015. In the Application, the Defendant is seeking for the following orders:
(a) That this Honourable Court be pleased to review the order made on 2nd June 2015 by the Honourable Justice Angote directing that the hearing of the Originating Summons herein proceed by way of affidavit evidence and unopposed
(b) That this Honourable Court be pleased to issue fresh directions regarding the hearing of the Originating Summons and that the Defendants be granted leave to file its Replying Affidavit so as to defend the Originating Summons.
(c) That cost of this application be provided for.
2. The Application is premised on the grounds that when the matter came up for directions on 2nd June 2015, there was no appearance by counsel for the Defendant; that the failure to attend court on 2nd June 2015 by counsel was an inadvertent error as the matter was not diarized and that the failure to attend court on 2nd June 2015 was not intentional but purely a mistake on the part of the advocate.
3. In his Replying Affidavit, the Plaintiff deponed that the Defendant is not keen in defending the Originating Summons considering that he has not annexed a draft response and that the instant Application for review does not meet the requirements of Order 45 of the Civil Procedure Rules.
4. The suit was commenced by way of an Originating Summons on 6th March 2015. On 16th March 2015, the Defendant filed a Memorandum of Appearance.
5. The matter came up for directions on 2nd June 2015 when I ordered that the Originating Summons should proceed by way of affidavit evidence as undefended.
6. The Defendant is seeking to review the said order on the ground that its advocate misdiarised the date the matter was coming up for directions.
7. Order 45 Rule 1 of the Civil Procedure Rules provides that the court may review its orders for any sufficient reason.
8. Considering that the Defendant's advocate has deponed that the failure to attend court on 2nd July 2015 was an inadvertent mistake due to the failure on his part to diarise the date, and in view of the fact that the suit was filed in March 2015, I shall review my orders of 2nd June 2015 and allow the Defendant to defend the suit.
9. For those reasons, I set aside the orders of 2nd June 2015 and direct that the Defendant files and serves a Replying Affidavit within fourteen (14) days from the date of this Ruling.
10. Each party shall bear his/its own costs.
Dated and delivered in Malindi this 25th day of September2015.
O. A. Angote
Judge