[2009] KEHC 1197 (KLR)
The court found that the applicant's failure to attend court was due to a genuine clerical error and not intentional disregard of the court process. The explanation provided was reasonable, and the applicant acted promptly to rectify the situation. The court exercised its discretion to set aside the dismissal order,...
Source-derived case information.
- Citation
- [2009] KEHC 1197 (KLR)
- Parties
- Applicant: Awadh Salim Abed Badaman; Respondent: Mohammed Ali Pyralli Hashamani; Respondent: Frank Ferdinand Hall
- Court
- High Court
- Court Station
- High Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 13 of 2008
- Procedural Posture
- Miscellaneous Application / Application to Set Aside Dismissal and Reinstate Application
- Outcome
- Application allowed. Orders of dismissal set aside. Application dated 18-6-09 reinstated for hearing. Costs to the applicant.
- Judges
- DO Ohungo
- Legal Topics
- Setting Aside Orders, Reinstatement of Application, Non Appearance, Court Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Awadh Salim Abed Badaman
Applicant
Mohammed Ali Pyralli Hashamani
Respondent
Frank Ferdinand Hall
Respondent
Procedural Posture
Miscellaneous Application / Application to Set Aside Dismissal and Reinstate Application
Legal Issues
- 1 Whether the court should set aside the dismissal order for non-appearance and reinstate the application dated 18th June 2009.
- 2 Whether the applicant's explanation for non-attendance constitutes sufficient cause.
Ratio Decidendi
The court found that the applicant's failure to attend court was due to a genuine clerical error and not intentional disregard of the court process. The explanation provided was reasonable, and the applicant acted promptly to rectify the situation. The court exercised its discretion to set aside the dismissal order, finding that no prejudice would be caused to the respondents by reinstating the application. The overriding objective of justice required that the applicant be given an opportunity to be heard on the merits of the application dated 18th June 2009.
Court Disposition
Application allowed. Orders of dismissal set aside. Application dated 18-6-09 reinstated for hearing. Costs to the applicant.
Orders
- The orders of dismissal of the application dated 18th June 2009 are set aside.
- The application dated 18th June 2009 is reinstated for hearing.
Full Case Text
Judgment text and source record
17 paragraphs
AWADH SALIM ABED BADAMAN…………………….APPLICANT
VERSUS
1. MOHAMMED ALI PYRALLI HASHAMANI
2. FRANK FERDINAND HALL ……..…………RESPONDENTS
RULING
The application dated 8th July 2009, is made by way of Chamber Summons under Order IXB Rules 8 of the Civil Procedure Rules and section 3A of the Civil Procedure Act seeking that the orders of dismissal of the application dated 18th June 2009 for non-appearance be set aside and the application be reinstated.
The grounds are that:
(a) There was confusion between the advocate’s clerk who took down the date for hearing the application and the advocate.
(b) The clerk indicated that the application was listed for hearing on 8th July 2009 when he attempted to file an affidavit of service in readiness for 8th July 2009, he realized that the application was in fact listed for 7th July 2009 and the same had been dismissed due to non attendance.
The affidavit sworn by Mr. Kupalia (counsel for applicant) is a repeat of what is contained on the grounds on the face of the application.
He explained that the failure to attend court on 7-7-09 was not intentional but was occasioned by an error on the part of the clerk. He urged this court not to let the applicant suffer for a mistake not of his own making.
I think the explanation given is reasonable, no prejudice will be occasioned by setting aside the orders which dismissed application dated 18-6-09 – the applicant in fact acted with speed and filed this application by setting aside the orders of dismissal and reinstating the application dated 18-6-09 for hearing.
Parties to take mutual date in the registries.
Costs of this application shall be borne by the applicant.
Delivered and dated this 28thday of October 2009at Malindi.
H. A. Omondi
JUDGE