[2020] KEHC 10044 (KLR)
The court found that although the Plaintiff's counsel failed to fully comply with the court's directions and did not attend court as required, the blame for the delay in the matter lay with both parties' advocates. The overriding objective of the Civil Procedure Act requires parties and their advocates to assist the...
Source-derived case information.
- Citation
- [2020] KEHC 10044 (KLR)
- Parties
- Plaintiff: Captain Patrick Karanja Njenga; Defendant: Kenya Revenue Authority
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 498 of 2013
- Procedural Posture
- Civil Case / Application to Set Aside Dismissal Order
- Outcome
- Application allowed; dismissal order set aside; suit reinstated for hearing.
- Judges
- DAS Majanja
- Legal Topics
- Dismissal of Suit, Setting Aside Orders, Overriding Objective, Non Compliance With Court Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Captain Patrick Karanja Njenga
Plaintiff
Kenya Revenue Authority
Defendant
Procedural Posture
Civil Case / Application to Set Aside Dismissal Order
Legal Issues
- 1 Whether the dismissal order made on 31st January 2020 should be set aside.
- 2 Whether the Plaintiff should be penalized for the advocate's failure to comply with court directions.
- 3 Whether the delay in prosecution of the suit justifies its dismissal.
Ratio Decidendi
The court found that although the Plaintiff's counsel failed to fully comply with the court's directions and did not attend court as required, the blame for the delay in the matter lay with both parties' advocates. The overriding objective of the Civil Procedure Act requires parties and their advocates to assist the court in ensuring justice is done fairly and proportionately. The court held that the Plaintiff should not be punished for his advocate's indolence, especially since the dispute was narrow and could be resolved efficiently if the parties complied with directions. Consequently, the court exercised its discretion to set aside the dismissal order and reinstate the suit, directing...
Court Disposition
Application allowed; dismissal order set aside; suit reinstated for hearing.
Orders
- The Notice of Motion dated 5th March 2020 is allowed.
- The dismissal order dated 31st January 2020 is set aside.
Full Case Text
Judgment text and source record
24 paragraphs
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
COMMERCIAL AND TAX DIVISION
CORAM: D. S. MAJANJA J.
CIVIL CASE NO. 498 OF 2013
BETWEEN
CAPTAIN PATRICK KARANJA NJENGA ......................................PLAINTIFF
AND
KENYA REVENUE AUTHORITY ............................................... DEFENDANT
RULING
1. The Plaintiff has moved the court by the Notice of Motion dated 5th March 2020 seeking to set aside the dismissal order made on 31st January 2020. The application is supported by the affidavit of the Plaintiff’s Advocate on record, Braimoh Mburu, sworn on 5th March 2020. It is opposed by the replying affidavit of Richard Ngari, the Defendant’s advocate, sworn on 13th March 2020. The matter was canvassed by written submissions which I have considered.
2. The dismissal order was a culmination of previous proceedings which I shall summa rise. On 29th November 2019, I directed the parties to agree on facts and issues for determination. When the matter came up on 15th January 2020, counsel for the Plaintiff did not attend court hence I directed the Plaintiff to show cause why he had not complied with the orders of 29th November 2019. On the day of the Notice to Show Cause, 30th January 2020, the court was informed that Mr Mburu, counsel for the plaintiff was attending a burial and he needed more time to comply. I adjourned the matter to the next day, 31st January 2020. On that date no reason was furnished why the Plaintiff had not complied with my orders. I dismissed the suit thus precipitating this application.
3. Mr Mburu stated that he had partly complied with the court’s directions by filing a set of agreed issues on 31st January 2020 but failed to file facts. He stated that his absence from court was occasioned by fact the that he understood the matter would be mentioned on 31st January 2020. He also claimed that the Defendant has never filed a witness statement in the matter. He stated that the Plaintiff was ready to comply with any orders that the court may direct and that the Plaintiff should not be made to pay for the mistakes of his advocate.
4. The Defendant takes the position that the Plaintiff’s counsel failure to attend court on 31st January 2020 were not explained. He averred that this is an old matter that has been pending since 2013 and its continued existence continues to cause prejudice to the Defendant. Counsel for the Defendant urged the court to impose terms it deems it fit to secure the Defendant’s position.
5. This is a matter that has been in court for a period of 7 years and this court’s directions were intended to ensure that the matter is dealt with without further delay. Under the overriding objective, advocates and parties have an obligation to assist the court in ensuring that justice is conducted in a fair, just and proportionate manner. Section 1A(3) of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) provides as follows:
1A (3) A party to civil proceedings or an advocate for such a party is under a duty to assist the Court to further the overriding objective of the Act and, to that effect, to participate in the processes of the Court and to comply with the directions and orders of the Court.
6. Although I dismissed the case for no compliance, the orders I made were very clear that the parties agree on facts and issues. I said so because looking at the claim and defence, the dispute was narrow and involve interpretation of the applicable tax law to a set of facts which appear undisputed and then the issue of consequential loss. It is surprising that parties cannot agree on such a simple way to dispose of the suit hence the blame for delay of the matter lay on both counsel who are not taking their responsibility to the court seriously. I should not punish the Plaintiff for his advocate’s indolence in the matter.
7. I allow the Notice of Motion dated 5th March 2020, set aside the dismissal order dated 31st January 2020 and reinstate the suit for hearing. The parties are directed to agree on facts and issues within the next fourteen (14) days. In addition, the parties shall file all witness statement and documents and shall file affidavits indicating that they do not have any further documents in their power and or possession other than the documents produced.
DATEDandDELIVEREDatNAIROBIthis31st day of AUGUST 2020.
D. S. MAJANJA
JUDGE
Court Assistant: Mr M. Onyango
Mr Mburu instructed by Righa & Mburu Advocates for the Plaintiff.
Mr Ngari, Advocate instructed by Kenya Revenue Authority for the Defendant.