[2008] KEHC 1642 (KLR)
The court found that the application to set aside the dismissal order was brought without undue delay. Although the plaintiffs claimed to have been present in court, their advocate was absent and did not bring their presence to the court's attention at the material time. The court emphasized its discretionary power...
Source-derived case information.
- Citation
- [2008] KEHC 1642 (KLR)
- Parties
- Plaintiff: Cecilia Wairimu Njagi; Plaintiff: Margaret Njeri Njagi; Defendant: Peris Kemuma Nyarega
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 445 of 2003
- Procedural Posture
- Civil Suit / Application to Set Aside Dismissal Order
- Outcome
- Application to set aside dismissal order allowed with costs to the defendant.
- Legal Topics
- Setting Aside Dismissal, Non Attendance of Parties, Discretion of Court, Pre Trial Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Cecilia Wairimu Njagi
Plaintiff
Margaret Njeri Njagi
Plaintiff
Peris Kemuma Nyarega
Defendant
Procedural Posture
Civil Suit / Application to Set Aside Dismissal Order
Legal Issues
- 1 Whether the dismissal order for non-attendance should be set aside.
- 2 Whether the plaintiffs or their advocate were present in court at the time of dismissal.
- 3 Whether the application to set aside was brought without undue delay.
Ratio Decidendi
The court found that the application to set aside the dismissal order was brought without undue delay. Although the plaintiffs claimed to have been present in court, their advocate was absent and did not bring their presence to the court's attention at the material time. The court emphasized its discretionary power to set aside dismissal orders where justice demands, particularly when the application is prompt and there is a plausible explanation for non-attendance. However, the court noted the plaintiffs' lack of diligence and imposed costs as a condition for setting aside the dismissal. The dismissal order was set aside, and the matter was directed to proceed to pre-trial conference,...
Court Disposition
Application to set aside dismissal order allowed with costs to the defendant.
Orders
- The dismissal order of 29 April 2008 is set aside.
- The plaintiffs to pay throw away costs of Ksh. 5,000 to the defendant.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS) Civil Suit 445 of 2003
CECILIA WAIRIMU NJAGI ….............……………………. 1ST PLAINTIFF
MARGARET NJERI NJAGI….…...............………............ 2ND PLAINTIFF
VERSUS
PERIS KEMUMA NYAREGA……....……DEFENDANT/RESPONDENT
RULING
TO SET ASIDE DISMISSAL ORDERS
ORDER IXB R 8 CIVIL PROCEDURE RULES
I. Background
1. The plaintiff representative of the deceased one Josephat Njagi Ndiga (deceased) who died on 24 June 1996 claimed that he had been allocated a City Council of Nairobi House No. 4153 Umoja 1 Easte. A dispute on the ownership of the said house between them and one Peris Kemuma Nyarega the defendant herein.
2. On the day called out for hearing, the plaintiff 1& 2 and their advocate were absent. The defendant’s advocate was also absent. The suit was dismissed for non attendance of parties on 29 April 2008 on under order IXB r 2 Civil Procedure Rules.
II Application 30 April 2008
3. The plaintiff filed an application seeking for the setting aside of the dismissal order to court. The reasons given is that the plaintiffs were in court but their advocate were absent.
4. The defendant who were not present to court stated the plaintiff have been delaying this case for 12 years and have never presented it.
5. The advocate for plaintiff claimed that he came to court after the dismissal. If he did, he never brought it to the court’s attention then, that the plaintiff were in court.
III. Finding
6. The application has been brought without unordinate delay. The plaintiff claims to have had plaintiff in court but did not bring this to the courts attention
7. Advocate claims to be in court but was absent nor did he address court on 29 April 2008 nor recorded the case on file.
8. The court has discretion in setting aside dismissal orders. I would accordingly set aside the dismissal orders but at a throw away costs of Ksh.5,000/- to the defendant. The parties to proceed to pre-trial conference hearing.
DATED THIS 29TH DAY OF JULY 2008 AT NAIROBI
M.A. ANG’AWA
JUDGE
K. M. Gichachi instructed by Gichachi & Co. Advocates for the plaintiff – present
J. Omwenga instructed by J. Omwenga & Co. Advocates for the defendant