[2000] KECA 67 (KLR)
The court exercised its discretion to reinstate the application dismissed for non-attendance, despite the lack of a satisfactory explanation from the applicant's advocate. The judge considered the case borderline but was prepared to give the benefit of doubt to the applicant's advocate, Mr Khaminwa, on strict terms....
Source-derived case information.
- Citation
- [2000] KECA 67 (KLR)
- Parties
- Applicant: Benson Ngugi Muiruri; Respondent: Kenya National Capital Corporation
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- ? 236 of 1998
- Procedural Posture
- Civil Application / Application for Reinstatement After Dismissal for Non Attendance
- Outcome
- Application allowed; previous dismissal order set aside; application reinstated on terms.
- Legal Topics
- Reinstatement of Application, Dismissal for Non Attendance, Costs Award, Judicial Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Benson Ngugi Muiruri
Applicant
Kenya National Capital Corporation
Respondent
Procedural Posture
Civil Application / Application for Reinstatement After Dismissal for Non Attendance
Legal Issues
- 1 Whether the application dismissed for non-attendance should be reinstated.
- 2 Whether the applicant's advocate's absence was sufficiently explained to warrant reinstatement.
- 3 What terms, if any, should be imposed for reinstatement.
Ratio Decidendi
The court exercised its discretion to reinstate the application dismissed for non-attendance, despite the lack of a satisfactory explanation from the applicant's advocate. The judge considered the case borderline but was prepared to give the benefit of doubt to the applicant's advocate, Mr Khaminwa, on strict terms. The reinstatement was made conditional upon the applicant paying the respondent's costs assessed at KES 10,000 within 10 days, failing which the application would stand dismissed without further order. The decision underscores the importance of advocate attendance and the court's willingness to grant relief in the interests of justice, but only on terms that compensate the...
Court Disposition
Application allowed; previous dismissal order set aside; application reinstated on terms.
Orders
- The order dated 21st April 1999 dismissing the application is set aside.
- The application is reinstated.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL AT NAIROBI CORAM: KWACH, J.A. (IN CHAMBERS) CIVIL APPLICATION NO. NAI. 236 OF 1998 BETWEEN
BENSON NGUGI MUIRURI .............................. APPLICANT
AND
KENYA NATIONAL CAPITAL CORPORATION ................ RESPONDENT
(Appeal from a Judgment of the High Court of Kenya at Nairobi (Hon. Justice Ole Keiwua) dated 10th February 1998 in H.C.C.C. NO. 1981 OF 1993) ***************
R U L I N G
This is an application for reinstatement of the application which I dismissed on 21st April, 1999 for non attendance. For some reason the application was listed before two Judges of Appeal namely Kwach and Owuor JJA. But this cannot justify the decision by Mr Khaminwa to send his clerk to Court knowing fully well that a clerk could not possibly deal with the matter on his behalf. Mr Khaminwa has not explained why he was not in Court when the matter was called. He may have been engaged elsewhere, I do not know.
This is a very borderline case and I am prepared to give Mr Khaminwa the benefit of doubt, but on terms Accordingly, I allow the application, set aside my order dated 21st April 1999 and reinstate the Motion. The applicant will pay the respondent=s costs assessed at Shs 10,000/- within 10 days, and in default this application to stand dismissed with costs without any further order.
Dated and delivered at Nairobi this 19th day of January, 2000.
R. O. KWACH
----------------
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR