[2013] KEHC 3294 (KLR)
The court found that the applicant had taken steps to prosecute the matter by fixing it for directions and that the delay was reasonably explained by the misfortune of his advocates being struck off the roll. The court noted the absence of evidence that the parties were served with notice to show cause before the...
Source-derived case information.
- Citation
- [2013] KEHC 3294 (KLR)
- Parties
- Plaintiff: Bonface Nyongesa Nandwoli; Defendant: Francis Barasa Inyasi
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Civil Case 13 of 2006
- Procedural Posture
- Civil Case / Application for Reinstatement of Suit Dismissed for Want of Prosecution
- Outcome
- application allowed; suit reinstated
- Legal Topics
- Reinstatement of Suit, Dismissal for Want of Prosecution, Service of Notice, Advocate Struck Off Roll
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Bonface Nyongesa Nandwoli
Plaintiff
Francis Barasa Inyasi
Defendant
Procedural Posture
Civil Case / Application for Reinstatement of Suit Dismissed for Want of Prosecution
Legal Issues
- 1 Whether the suit should be reinstated after dismissal for want of prosecution.
- 2 Whether the applicant's explanation for delay is reasonable.
- 3 Whether proper notice to show cause was served before dismissal.
Ratio Decidendi
The court found that the applicant had taken steps to prosecute the matter by fixing it for directions and that the delay was reasonably explained by the misfortune of his advocates being struck off the roll. The court noted the absence of evidence that the parties were served with notice to show cause before the dismissal. The respondent did not oppose the application. In light of these factors, the court held that the applicant's explanation was reasonable and that the suit should be reinstated to allow it to be heard on its merits.
Court Disposition
application allowed; suit reinstated
Orders
- The order of 26th June 2009 dismissing the applicant's suit is set aside.
- The suit is reinstated forthwith.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
High Court at Bungoma
Civil Case 13 of 2006 [if gte mso 9]><xml>
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BONFACE NYONGESA NANDWOLI …........................................PLAINTIFF
VERSUS
FRANCIS BARASA INYASI …..................................................DEFENDANT
RULING
The applicant has sought this court's orders for reinstatement of his suit dismissed on 26th June 2009 for want of prosecution.
The applicant avers in his application that his counsel Messers H.P. Wamalwa was struck off the roll of advocates but he was not made aware. His misfortune continued when his newly instructed advocates Messers Wachana & co. advocates were also struck off the roll. He contends the orders dismissing his suit exparte was premature, unprocedural and irregular.
The respondent was served with a hearing notice. I do not see the return of service filed in court on the application being served on him. However, I did allow the application to be prosecuted despite the absence of the respondent because of the affidavit of service on record indicating he was served for the hearing date.
I have looked at the court record, the respondent had been served with the O.S and he filed his replying affidavit. Subsequently the applicant filed an application dated 27th October 2007 for directions to be taken. The said application was fixed for hearing on 26th May 2008.
On this date, directions were taken. Thereafter nothing is recorded in the court file until 26. 6.2009 when the suit came up for dismissal and is dismissed. There is no mention as to whether the parties were served with the notice to show cause why the suit should not be dismissed. It appears both parties were absent on the 26th june 2009.
Since the applicant had taken steps by fixing this matter for directions, this court finds his explanation of his advocates being struck of the roll as reason for delay reasonable. He first filed application to re-instate his suit in person on 17th February 2012 before his present counsel Ms. Wanyonyi & co. advocates withdrew it and substituted it with the present application. This is further demonstration of the applicant's effort to have the suit heard.
The respondent has not filed any documents to oppose the application nor did he attend court on the date fixed for hearing of the application. The application is therefore unopposed. For this and earlier reason given above, I allow the application, set aside the court's order of 26th June 2009 dismissing the applicants suit. The suit is reinstated forthwith.
RULING DATED, SIGNED, READ AND DELIVEREDin open court this 21st day of May 2013.
A.OMOLLO
JUDGE.
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