[2019] KEHC 5104 (KLR)
The court found that the applicant had satisfactorily explained the circumstances leading to the non-appearance of counsel, which resulted in the dismissal of the application. The withdrawal and replacement of the supporting affidavit was also explained and did not cause any prejudice to the respondents. The court...
Source-derived case information.
- Citation
- [2019] KEHC 5104 (KLR)
- Parties
- Appellant: Bernard Murigi Maithya; Respondent: Hussein Abdul Kadir; Respondent: MFI Office Solutions Limited; Respondent: Diamond Trust Bank Kenya Limited; Respondent: The Registrar of Motor Vehicles; Respondent: The Officer Commanding Central Police Station
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 98 of 2017
- Procedural Posture
- Civil Appeal / Ruling on Application to Set Aside Dismissal Order and Reinstate Application
- Outcome
- application allowed; dismissal order set aside; application reinstated
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Setting Aside Orders, Reinstatement of Applications, Affidavit Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Bernard Murigi Maithya
Appellant
Hussein Abdul Kadir
Respondent
MFI Office Solutions Limited
Respondent
Diamond Trust Bank Kenya Limited
Respondent
The Registrar of Motor Vehicles
Respondent
The Officer Commanding Central Police Station
Respondent
Procedural Posture
Civil Appeal / Ruling on Application to Set Aside Dismissal Order and Reinstate Application
Legal Issues
- 1 Whether the order dismissing the applicant's application should be set aside.
- 2 Whether the withdrawal and replacement of the supporting affidavit was proper.
- 3 Whether the applicant has provided sufficient explanation for non-appearance leading to dismissal.
Ratio Decidendi
The court found that the applicant had satisfactorily explained the circumstances leading to the non-appearance of counsel, which resulted in the dismissal of the application. The withdrawal and replacement of the supporting affidavit was also explained and did not cause any prejudice to the respondents. The court emphasized the principle that matters should be determined on their merits and parties should be afforded an opportunity to be heard. Consequently, the dismissal order was set aside and the application reinstated for hearing, with costs awarded to the appellant.
Court Disposition
application allowed; dismissal order set aside; application reinstated
Orders
- The order for dismissal made on 18th July, 2018 is set aside.
- The application dated 18th June, 2018 is reinstated for hearing.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
HIGH COURT CIVIL APPEAL NUMBER 98 OF 2017
BERNARD MURIGI MAITHYA.............................................APPELLANT/RESPONDENT
VERSUS
HUSSEIN ABDUL KADIR.........................................................................1ST RESPONDENT
MFI OFFICE SOLUTIONS LIMITED..............................2ND RESPONDENT/APLICANT
DIAMOND TRUST BANK KENYA LIMITED......................................3RD RESPONDENT
THE REGISTRAR OF MOTOR VEHICLES.........................................4TH RESPONDENT
THE OFFICER COMMANDING CENTRAL POLICE STATION......5TH RESPONDENT
(An appeal from the ruling of the Senior Resident magistrateat Milimani
deliveredby Hon. L W Kabaira (Ms) on 27th February, 2017
in
CMCC No. 2500 of 2011)
R U L I N G
This is an application by way of Notice of Motion seeking to set aside the order dismissing the applicant’s application dated 18th June, 2018 which sought to strike out the Memorandum of Appeal dated 9th March, 2017.
This application dated 24th October, 2018 is brought under Sections 1A, 1B and 3A of the Civil Procedure Act, Order 12 Rule 7 and Order 51 Rule 1 of the Civil Procedure Rules.
It is opposed and the respondents have filed replying affidavits and cited some authorities. The first affidavit annexed to the application was withdrawn and another one filed which angered the respondents contesting that, this was un-procedural and that it should be expunged from the record. Counsel have filed submissions which I have noted.
The withdrawal of the first affidavit has been explained to the satisfaction of the court. No prejudice has been alleged on the part of the respondents. The reasons advanced for non-appearance of counsel for the 2nd Respondent, who is the applicant herein, on the date the application was dismissed, has equally been explained by the counsel appearing. In any case, courts are enjoined to sustain suits and applications rather than dismissing them, so that every party has their day in court.
The order for dismissal made on 18th July, 2018 is hereby set aside and the application reinstated for hearing. The parties shall now take a hearing date convenient to them for the application dated 18th June, 2018. The costs of this application shall however, be paid by the 2nd respondent to the appellant.
Dated, signed and delivered at Nairobi on 20th day of June, 2019.
A. MBOGHOLI MSAGHA
JUDGE