[2005] KEHC 787 (KLR)
The court found that the best interests of justice would be served by allowing the defendants to conclude their case, as there was no prejudice to the plaintiff. The court exercised its discretion under Section 3A of the Civil Procedure Act to set aside the previous order closing the defence case and permitted the...
Source-derived case information.
- Citation
- [2005] KEHC 787 (KLR)
- Parties
- Plaintiff: Awo Shariff Mohammed; Defendant: Abdulkadir Shariff Abdirahim; Defendant: Abdinasir Abdirahim Mohammed; Defendant: AS Abdirahim Enterprises
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 329 of 2003
- Procedural Posture
- Civil Suit / Interlocutory Application to Set Aside Order Closing Defence Case
- Outcome
- Application to set aside the order closing the defence case is allowed.
- Legal Topics
- Setting Aside Orders, Right to Be Heard, Procedural Fairness
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Awo Shariff Mohammed
Plaintiff
Abdulkadir Shariff Abdirahim
Defendant
Abdinasir Abdirahim Mohammed
Defendant
AS Abdirahim Enterprises
Defendant
Procedural Posture
Civil Suit / Interlocutory Application to Set Aside Order Closing Defence Case
Legal Issues
- 1 Whether the order made on 7th April 2005 closing the defence case and listing the matter for submissions should be set aside.
- 2 Whether the defendants should be permitted to prosecute their case and call remaining evidence.
Ratio Decidendi
The court found that the best interests of justice would be served by allowing the defendants to conclude their case, as there was no prejudice to the plaintiff. The court exercised its discretion under Section 3A of the Civil Procedure Act to set aside the previous order closing the defence case and permitted the defendants to proceed with their evidence. The court also noted that procedural technicalities regarding the form of the application (notice of motion versus chamber summons) should not override substantive justice.
Court Disposition
Application to set aside the order closing the defence case is allowed.
Orders
- The order made on 7th April 2005 closing the defence case is set aside.
- The defendants are permitted to proceed with their case and call remaining evidence.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI COMMERCIAL DIVISION, MILIMANI Civil Suit 329 of 2003
AWO SHARIFF MOHAMMED ………………………………….PLAINTIFF
VERSUS
ABDULKADIR SHARIFF ABDIRAHIM
ABDINASIR ABDIRAHIM MOHAMMED
T/a AS ABDIRAHIM ENTERPRISES ……..…...….DEFENDANTS
RULING
This case was part heard before me when it came up on 7th April 2005 for defence hearing.
On 7th April defence counsel failed to attend the hearing and on the application of the plaintiff the court ordered that submission be made on 18th April 2005.
The defendant has now moved the court for orders that the order made on 7th April 2005 closing the case and listing the matter for submissions be set aside; that the defendants applicant be permitted to prosecute their case to call the remaining evidence.
It was submitted by defence learned counsel Mr. Kibunja that on 7th April the 2nd defendant and his witnesses were present in court ready to tender their evidence before court; that defence counsel was held up before Hon Justice Waweru where he had gone to inquire on a ruling. The defendant then prayed that the court be given an opportunity to tender his evidence.
The plaintiff opposed the defendant’s application. Learned counsel Mr. F N Wamalwa did at the hearing concede that he was mistaken into thinking that the counsel who had appeared in this matter was someone other than Mr. Stephen Kibunja. The plaintiff’s argument that the application of the defendants can only be entertained under Section 3 A of the Civil procedure Act was lost to me because the defendant indeed did invoke that very section. The plaintiff’s other argument was that the application ought to have rightly be brought under notice of Motion rather than chamber summons. The plaintiff sought the dismissal of the application.
I have considered the arguments of counsel and I find that the best interest of justice would be served if the defendants were allowed to conclude their case. There is no prejudice that will be suffered by the plaintiff.
The order of the court is that the order made on the 7th April 2005 is set aside and the defendants can proceed with their case. The costs of the application dated 16th May 2005 are awarded to the plaintiff in any event. It is so ordered.
Dated and delivered this 22nd July 2005.
MARY KASANGO
JUDGE