[2009] KEHC 1434 (KLR)
The court accepted the explanation provided by the applicant's advocate that the non-attendance was due to a vehicle breakdown, which was beyond his control. The application for reinstatement was filed promptly, indicating no inordinate delay. The court exercised its discretion to set aside the dismissal order and...
Source-derived case information.
- Citation
- [2009] KEHC 1434 (KLR)
- Parties
- Plaintiff: Annah Chepkemoi Maina; Defendant: Mary Chepkosgei Rop
- Court
- High Court
- Court Station
- High Court at Kericho
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 34 of 2009
- Procedural Posture
- Civil Suit / Application for Reinstatement of Suit Dismissed for Non Attendance
- Outcome
- Application granted; suit/application reinstated for hearing.
- Legal Topics
- Reinstatement of Suit, Non Attendance, Injunctions, Removal of Caution, Trespass to Land
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Annah Chepkemoi Maina
Plaintiff
Mary Chepkosgei Rop
Defendant
Procedural Posture
Civil Suit / Application for Reinstatement of Suit Dismissed for Non Attendance
Legal Issues
- 1 Whether the applicant has provided a sufficient explanation for non-attendance to warrant reinstatement of the dismissed application.
- 2 Whether the application for reinstatement was brought without inordinate delay.
Ratio Decidendi
The court accepted the explanation provided by the applicant's advocate that the non-attendance was due to a vehicle breakdown, which was beyond his control. The application for reinstatement was filed promptly, indicating no inordinate delay. The court exercised its discretion to set aside the dismissal order and reinstate the application for hearing, finding that justice would be served by allowing the matter to proceed on its merits.
Court Disposition
Application granted; suit/application reinstated for hearing.
Orders
- The orders dismissing the application of 21st April, 2009 are set aside.
- The application is reinstated for hearing.
Full Case Text
Judgment text and source record
56 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KERICHO
Civil Suit 34 of 2009
1. Civil Law
2. Civil Practice and Procedure
3. Subject of main application /suit
a) Land
b) LR Kericho/Chepmoiben/1060
c) Trespass by defendant
d) Injunction
e) Removal of caution.
4. Certificate of urgency filed Chamber Summons 21st April, 2009
a) Temporary injunction to restrain
defendant from interfering with land
b) Order to compel the Land Registrar
Kericho/Bureti District from maintaining a caution on land.
5. Application dismissed for non attendance to Court. Order 1xb r 2 cpr
6. Application dated 23rd April, 2009
a) Leave to reinstate a suit/application
that has been dismissed
b) Order 1xb r 8 cpr
c) Reasons being failure to attend court beyond the advocates
control namely the vehicle the advocate was traveling broke
down ten kilometers from Kericho.
7. Held
i) Explanation accepted by court
ii) Application reinstated for hearing
8. Case Law- Nil
9. Advocate
V.K. Bii advocate instructed by the firm of
M/S Bii V.K. & Co. advocates for the Plaintiff/Applicant – present
N/A for the Defendant
ANNAH CHEPKEMOI MAINA .……..……………….. PLAINTIFF
VERSUS
MARY CHEPKOSGEI ROP ……………………… DEFENDANT
RULING
Application to reinstate one suit that was dismissed for
non attendance to court
----------------------------------------------------------------------
I: Background
1. During the Easter Court vacation, the applicant in this land matter had filed a certificate of urgency seeking orders of Court for an injunction to restrain the defendants from interfering with her quite possession of Land LR. Kericho/Chemoiben/1060.
2. She went further to ask the court to compel the Land Registrar to remove a caution placed against the parcel of land.
3. On the day of application was called out namely 22nd April, 2009 the advocate was absent. The application of 21st April, 2009 was dismissed for non-attendance.
4. The applicant filed this present application dated 23rd April, 2009 seeking to reinstate the same
II: Application 23rd April, 2009
5. The explanation given by the advocate for non-attendance to Court was that it was beyond his control. He was traveling in a motor vehicle (no registration number was disclosed) that it broke down 10 kilometers from Kericho. The said breakdown caused his non-attendance to court.
III:Finding
6. This court would accept that the application was brought without any inordinate delay. That the advocate non-attendance to court on behalf of his client was beyond his control.
7. The application is accordingly granted. The orders dismissing the said application of 21st April, 2009 be set aside and reinstated for hearing.
8. The costs be in the cause.
DATEDthis 19th day of May, 2009 at KERICHO
M.A. ANG’AWA
JUDGE
Advocates
V.K. Bii advocate instructed by the firm of M/S Bii V.K. & Co. advocates
for the Plaintiff/Applicant – present
N/A for the Defendant