[2020] KEHC 3806 (KLR)
The court found that the applicant had provided a reasonable explanation for the non-attendance on 3rd October 2019, namely, an honest mistake by the advocate's clerk in failing to notify counsel of the hearing date. The court noted that the application was unopposed, as the respondent failed to appear or file any...
Source-derived case information.
- Citation
- [2020] KEHC 3806 (KLR)
- Parties
- Plaintiff: ASL Credit Limited; Defendant: Abdi Basid Sheikh Ali
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case E111 of 2018
- Procedural Posture
- Miscellaneous Application / Application to Set Aside Dismissal and Reinstate Suit
- Outcome
- application granted; suit and application reinstated
- Judges
- MW Muigai
- Legal Topics
- Reinstatement of Suit, Dismissal for Non Attendance, Ex Parte Applications
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
ASL Credit Limited
Plaintiff
Abdi Basid Sheikh Ali
Defendant
Procedural Posture
Miscellaneous Application / Application to Set Aside Dismissal and Reinstate Suit
Legal Issues
- 1 Whether the court should set aside the dismissal order of 3rd October 2019 for non-attendance and reinstate the suit and application.
- 2 Whether the applicant has provided sufficient cause for non-attendance at the hearing.
Ratio Decidendi
The court found that the applicant had provided a reasonable explanation for the non-attendance on 3rd October 2019, namely, an honest mistake by the advocate's clerk in failing to notify counsel of the hearing date. The court noted that the application was unopposed, as the respondent failed to appear or file any documents despite being served. Applying the relevant provisions of the Civil Procedure Rules, the court held that it is in the interest of justice and fairness to set aside the dismissal order and reinstate the suit and application so that the matter can be heard and determined on its merits.
Court Disposition
application granted; suit and application reinstated
Orders
- The application filed on 17th March 2020 is granted.
- The court orders of 3rd October 2019 are set aside and vacated.
Full Case Text
Judgment text and source record
36 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
COMMERCIAL & TAX DIVISION
HCCC NO E 111 OF 2018
ASL CREDIT LIMITED .........................PLAINTIFF
VERSUS
ABDI BASID SHEIKH ALI.........1ST RESPONDENT
RULING
By Certificate of Urgency Application filed by Plaintiff/Applicant on 17th March 2020, the Applicant sought that the Court orders of 3rd October 2019, where Hon. L.J M. Kasango dismissed the Plaintiff’s suit for non-attendance by the Plaintiff/Applicant be set aside and vacated and the suit reinstated.
The Plaintiff/Applicant instituted by Plaint and filed on 9th October 2018 for hearing of the Plaintiff’s application filed on 17th October 2018.
The Plaintiff/Applicant is apprehensive that its legitimate rights as pursued in the Plaint will be extinguished and the Plaintiff will be condemned unheard and subsequently suffer irreparable loss and damage.
The grounds relied upon are that although the Plaintiff served the Defendant with the application for hearing of the matter on 10th July 2019, Counsel was unwell and the Court stood over the matter to another date to be taken by parties.
The Plaintiff took the date of 3rd October 2019. The Clerk erroneously and through honest mistake failed to notify the advocate on record the date fixed for the hearing of the application. The advocate failed to attend Court.
The Court on its own motion dismissed the whole suit for non-attendance whereas the matter was coming up for hearing of the application.
The Plaintiff/Applicant sought to peruse the Court file but was unable to trace the same. When the Applicant found and perused the Court file he confirmed the above facts.
The Plaintiff/Applicant wishes to have the dismissed application dated 17th October 2018 and the suit filed on 9th October 2018 reinstated heard and determined by the Court.
It is in the interest of justice and fairness the suit and application should be heard and determined on merit.
By Affidavit of Service sworn on 17th June 2020 and filed through e-filing, the Applicant confirmed that the Defendant/Respondent was served on 17th June 2020 through advocates on record A. N.Oeri Advocates with the Hearing Notice and Certificate of Urgency application.
DETERMINATION
On 2nd July 2020, the Application was heard through virtual conference exparte, the Applicant applied for the suit and application and orders of 3rd October 2019 to be set aside and suit and application to be reinstated.
The application was unopposed, the Defendant/Respondent despite service failed to appear during proceedings and/or to be represented. No explanation, circumstances or reasons were explained to the Court to consider and no pleadings or documents were filed with regard to the instant application.
Order 12 & 17 CPR 2010 address the dismissal of suit for non-attendance and non-prosecution for 1 year. Order 51 CPR 2010 addresses the process of hearing applications and where a party is absent then the Court proceeds exparte.
In the instant case both parties failed to appear and attend Court on 3rd October 2019, the Court dismissed the suit as per Order 17 Rule 3 and Order 12 Rule 1 CPR 2010 for non-attendance of both parties.
The Applicant outlined in the instant application the reasons for non-attendance and non-prosecution of the application slated for hearing on 3rd October 2019. The mistake was by the Plaintiff Advocate’s Clerk who failed to diarize the date and inform Counsel and thus counsel did not attend court.
DISPOSITION
1. The Application is unopposed. The Application filed on 17th March 2020 is granted.
2. The Court orders of 3rd October 2019 are hereby set aside and vacated.
3. The application and suit are reinstated.
4. They shall be processed in the normal process for hearing and determination through Deputy Registrar Commercial & Tax Division.
DELIVERED SIGNED & DATED IN OPEN COURT ON 20TH JULY 2020. (VIRTUAL CONFERENCE)
M.W. MUIGAI
JUDGE
IN THE PRESENCE OF;
CM ADVOCATES LLP FOR PLAINTIFF/APPLICANT- MS MWANGI
A.N.OERI & CO FOR DEFENDANT/RESPONDENT- MS OERI
COURT ASSISTANT - TUPET