[2014] KEHC 42 (KLR)
The court found that the applicant's failure to attend court was inadvertent and excusable, as supported by the affidavit evidence and the circumstances described. The absence was not due to negligence or intentional disregard of court process but rather an unforeseen event. The court held that denying the...
Source-derived case information.
- Citation
- [2014] KEHC 42 (KLR)
- Parties
- Applicant: Ben Tapoika Kipeno; Respondent: Enkutoto Eco Tourism Trust; Respondent: East African Cultural Experience Ltd.
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 94 of 2012
- Procedural Posture
- Civil Suit / Ruling on Application to Set Aside Dismissal and Reinstate Application
- Outcome
- Application allowed; dismissal order set aside; application reinstated.
- Judges
- DO Ohungo
- Legal Topics
- Setting Aside Orders, Reinstatement of Application, Non Attendance, Excusable Omission
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ben Tapoika Kipeno
Applicant
Enkutoto Eco Tourism Trust
Respondent
East African Cultural Experience Ltd.
Respondent
Procedural Posture
Civil Suit / Ruling on Application to Set Aside Dismissal and Reinstate Application
Legal Issues
- 1 Whether the dismissal of the application for non-attendance should be set aside.
- 2 Whether the applicant's failure to attend court was excusable and justified reinstatement of the application.
Ratio Decidendi
The court found that the applicant's failure to attend court was inadvertent and excusable, as supported by the affidavit evidence and the circumstances described. The absence was not due to negligence or intentional disregard of court process but rather an unforeseen event. The court held that denying the application would unjustly prejudice the applicant for a fault not of their own making. Therefore, in the interests of justice and fairness, the court exercised its discretion to set aside the dismissal order and reinstate the application.
Court Disposition
Application allowed; dismissal order set aside; application reinstated.
Orders
- The orders dismissing the application dated 15/01/2014 are set aside.
- The application dated 15/01/2014 is reinstated.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
CIVIL SUIT NO.94 OF 2012
BEN TAPOIKA KIPENO…………………….....……PLAINTIFF/APPLICANT
VERSUS
ENKUTOTO ECO TOURISM TRUST…....1ST DEFENDANT/ RESPONDENT
EAST AFRICAN CULTURAL
EXPERIENCE LTD. ...............................…..2ND DEFENDANT/RESPONDENT
RULING
By a notice of motion dated 24th July 2014 the applicant seeks that the orders issued on 22/07/2014 dismissing the application dated 15/01/2015 be vacated and said application be reinstated.
The reasons for seeking the orders is that the application dated 15/01/2014 had been fixed for hearing on 22/07/2014, and the applicant's counsel requested a colleague to hold his brief and adjourn the matter as there was need to file a further affidavit in response to the replying affidavit. However the counsel who was holding brief (Mr. Musembi Ndolo) stepped out of court to pick an important call, only to return and find the application dismissed for non-attendance. It is explained that the failure to be in court was inadvertent, and it is in the interest of justice and fairness that the prayers be allowed.
The application is supported by the affidavit sworn by MUSEMBI NDOLO (advocate) who deposes that he was requested by Mr. Kamonjo Kiburi to hold brief in the matter which was set for hearing on 22/07/2014. Counsel also had a separate matter before court being HCCC No.244 of 2012 [John Nganga V Eveready Batteries]. He confirms having stepped out to pick an important call, only to find the application dismissed for non-attendance.
I have considered what is deposed in the supporting affidavit and also perused the day's cause list for 22/07/2014. I am satisfied the deponent is being truthful as to what took place on the said date. There was no response filed with regard to the application. I have also considered the nature of prayers sought in that question to confirm that applicant will be prejudiced for no fault of their own.
I believe the failure to attend court was an inadvertent and therefore excusable omission which can be remedied by granting the orders sought.
Consequently, I allow the application and set aside the orders dismissing the same. The application dated 15/01/2014 is thus reinstated and the costs of the application shall be in cause.
Delivered and dated this 13th day of August, 2014 at Nakuru.
H.A. OMONDI
JUDGE