[2009] KEHC 1788 (KLR)
The court found that the applicant's advocate's absence was due to a genuine and uncontrollable circumstance—a vehicle breakdown—and that the application to reinstate the suit was made promptly without undue delay. The court accepted the explanation as sufficient cause and exercised its discretion to set aside the...
Source-derived case information.
- Citation
- [2009] KEHC 1788 (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 / Ruling on Application to Reinstate Suit Dismissed for Non Attendance
- Outcome
- Application to reinstate suit granted.
- Legal Topics
- Reinstatement of Suit, Dismissal for Non Attendance, Injunctions, Land Disputes
- 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 / Ruling on Application to Reinstate Suit Dismissed for Non Attendance
Legal Issues
- 1 Whether the suit dismissed for non-attendance should be reinstated.
- 2 Whether the explanation for the advocate's non-attendance is sufficient to warrant setting aside the dismissal.
Ratio Decidendi
The court found that the applicant's advocate's absence was due to a genuine and uncontrollable circumstance—a vehicle breakdown—and that the application to reinstate the suit was made promptly without undue delay. The court accepted the explanation as sufficient cause and exercised its discretion to set aside the dismissal, thereby reinstating the application for hearing. The court further ordered that costs be in the cause, reflecting the procedural nature of the application and the absence of fault on the part of the applicant.
Court Disposition
Application to reinstate suit granted.
Orders
- The dismissal order of 21st April, 2009 is set aside.
- The application is reinstated for hearing.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KERICHO
CIVIL SUIT 34 OF 2009
ANNAH CHEPKEMOI MAINA …………….……….. PLAINTIFF
VERSUS
MARY CHEPKOSGEI ROP ……………………… DEFENDANT
RULING
Application to reinstate one suit that was dismissed fornon attendance to court
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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