[2019] KEHC 3179 (KLR)
The court found that although there was an unexplained delay by counsel in filing the application for reinstatement, the interests of justice require that a party should not suffer due to the mistakes of their advocate. The court exercised its discretion to set aside the dismissal order and reinstated the...
Source-derived case information.
- Citation
- [2019] KEHC 3179 (KLR)
- Parties
- Applicant: Ambale Elizabeth Amisi; Respondent: Siaya District Hospital; Respondent: Dr. Allan
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Case 18 of 2019
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Reinstatement
- Outcome
- Application for reinstatement allowed; previous dismissal order set aside.
- Judges
- RE Aburili
- Legal Topics
- Reinstatement of Application, Dismissal for Non Attendance, Exercise of Judicial Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ambale Elizabeth Amisi
Applicant
Siaya District Hospital
Respondent
Dr. Allan
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Reinstatement
Legal Issues
- 1 Whether the application for reinstatement of the dismissed application should be allowed despite delay by counsel.
- 2 Whether the applicant should be penalized for the mistake of counsel in failing to attend court.
Ratio Decidendi
The court found that although there was an unexplained delay by counsel in filing the application for reinstatement, the interests of justice require that a party should not suffer due to the mistakes of their advocate. The court exercised its discretion to set aside the dismissal order and reinstated the application for hearing on its merits, emphasizing that justice can still be served even where counsel has been indolent.
Court Disposition
Application for reinstatement allowed; previous dismissal order set aside.
Orders
- The orders dismissing the application dated 29.7.2019 are set aside.
- The application dated 29.7.2019 is reinstated for disposal on merit.
Full Case Text
Judgment text and source record
16 paragraphs
-REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT SIAYA
MISC. CIVIL CASE NO. 18 OF 2019
AMBALE ELIZABETH AMISI ..................................................APPLICANT
VERSUS
SIAYA DISTRICT HOSPITAL
DR. ALLAN................................................................................RESPONDENT
RULING
1. I have perused the application dated 19. 9.2019 under certificate of urgency. I certify it as urgent.
2. The application seeks for reinstatement of the application dated 29. 7.2019. I certify it as urgent.
3. On the merits thereof, I have considered the affidavit sworn by Kenneth O. Mumbo on 19. 9.2019. It has taken counsel over one month to file the application for reinstatement of the dismissed application. There is delay which is not explained.
4. However, justice can still be done to the party to proceedings even where counsel appears to be indolent as it is not a party’s mistake that the application was dismissed for non-attendance. I exercise discretion and set aside the orders dismissing the application dated 29. 7.2019 and reinstate it for disposal on merit. As the application is exparte, the same shall be heard on 5. 11. 2019.
5. Orders accordingly
Dated at Siaya this 24th day of October, 2019
R.E. ABURILI
JUDGE