[2021] KEHC 6096 (KLR)
The court found that the plaintiff and its counsel were not notified of the date the matter was placed before the judge, and therefore their non-attendance was not deliberate. The absence of notice was a sufficient and convincing reason for the failure to attend, and there was no evidence of deliberate abandonment...
Source-derived case information.
- Citation
- [2021] KEHC 6096 (KLR)
- Parties
- Plaintiff: Chester House Ltd; Defendant: The Chief Secretary, State Department of Environment, Water & Natural Resources; Defendant: The Attorney General
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 129 of 2015
- Procedural Posture
- Civil Suit / Application for Reinstatement of Suit Dismissed for Non Attendance
- Outcome
- Application allowed; suit reinstated.
- Legal Topics
- Reinstatement of Suit, Dismissal for Non Attendance, Case Management, Notice Requirements
- 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
Chester House Ltd
Plaintiff
The Chief Secretary, State Department of Environment, Water & Natural Resources
Defendant
The Attorney General
Defendant
Procedural Posture
Civil Suit / Application for Reinstatement of Suit Dismissed for Non Attendance
Legal Issues
- 1 Whether the suit should be reinstated after dismissal for non-attendance of the plaintiff or counsel.
- 2 Whether the plaintiff or counsel was properly notified of the hearing date before the judge.
- 3 Whether the non-attendance amounted to deliberate abandonment of proceedings.
Ratio Decidendi
The court found that the plaintiff and its counsel were not notified of the date the matter was placed before the judge, and therefore their non-attendance was not deliberate. The absence of notice was a sufficient and convincing reason for the failure to attend, and there was no evidence of deliberate abandonment or indolence. The court held that in such circumstances, the suit should be reinstated to prevent injustice, as the plaintiff was deprived of the opportunity to be heard due to lack of notice. The application for reinstatement was thus merited and allowed.
Court Disposition
Application allowed; suit reinstated.
Orders
- The plaintiff's application for reinstatement is allowed.
- No orders as to costs.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURTOF KENYA AT NAIROBI
MILIMANI COMMERCIAL COURTS
CIVIL SUIT NO.129 OF 2015
CHESTER HOUSE LTD.................................................................PLAINTIFF
-VERSUS-
THE CHIEF SECRETARY, STATE DEPARTMENT OF
ENVIRONMENT, WATER & NATURAL RESOURCES.......1ST DEFENDANT
THE ATTORNEY GENERAL.................................................2ND DEFENDANT
RULING
1. The Applicant’s Notice of Motion is dated 23/11/2020. It is brought under Sections 3A and 63 of the Civil Procedure Act, Order 51 of the Civil Procedure Rules and all enabling provisions of the Law.
2. The Applicant seeks the reinstatement of the suit herein that was dismissed on 2nd November, 2020 by Hon. Thande, J for non-attendance of the Plaintiff or his Counsel.
3. The Hon. Attorney General for the Defendants/Respondents did not attend the hearing despite being served with the application and a hearing notice.
4. Mr. Ongeri for the Plaintiff submitted that when the matter came up for hearing on 14th April, 2020, both parties were present but the Hon. Attorney General had not complied with Order 11 as regards Case Management. A date for Case Management Conference was given before the Hon. Deputy Registrar on 29/6/2020 but on this date, the Hon. Deputy Registrar was not sitting. Counsel for the Plaintiff later learnt that the matter had been placed before the Hon. Judge without the party’s Notice. The Hon. Judge then dismissed it for want of attendance by the Plaintiff or his Counsel.
5. The averments are also borne in the Supporting Affidavit of David Orenge, Counsel for the Plaintiff sworn on 23/11/2020.
6. I have considered the application, the submissions by Counsel for the Applicant and the court record. It is clear that the Plaintiff or Counsel for the Plaintiff were not notified of the date the matter was placed before the Hon. Judge. Hence, the non-attendance was not deliberate.
7. A suit can only be dismissed on the clearest of a situation that demonstrates deliberate abandonment of proceedings or for other facts such as indolence on the part of a Respondent. Each case must however be considered on its own merit.
8. In the circumstances that the Plaintiff’s Counsel or the Plaintiff itself failed to attend court were convincing and beyond its control. Notice to the party was the only means by which it (Plaintiff) would have known that the matter had shifted from the Hon. Deputy Registrar to the Hon. Judge.
9. In the circumstances, the Plaintiff’s application is merited. The same is allowed with no orders as to costs. There shall be a mention before the Hon. Deputy Registrar on 19/7/2021 to confirm compliance with Case Conference Management. Mention Notice to issue.
DATED AND DELIVERED AT NAIROBI THIS 7TH JUNE, 2021.
G.W. NGENYE-MACHARIA
JUDGE
In the presence of:
1. Mr. Ongeri h/b for Mr. Orenge for the Plaintiff/Applicant
2. No appearance for the Defendant