[2018] KEHC 8357 (KLR)
The High Court found that the trial magistrate failed to exercise her discretion judiciously by refusing to set aside the dismissal order despite the appellant's counsel presenting a medical certificate explaining his absence. There was no evidence that the absence was intended to delay justice or prejudice the...
Source-derived case information.
- Citation
- [2018] KEHC 8357 (KLR)
- Parties
- Appellant: Daniel Kabuba Maina; Respondent: Mercelline N. Muriithi
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 246 of 2012
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal allowed; suit reinstated
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Setting Aside Orders, Judicial Discretion, Dismissal for Nonattendance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Daniel Kabuba Maina
Appellant
Mercelline N. Muriithi
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the trial court exercised its discretion judiciously in refusing to set aside the dismissal order for nonattendance.
- 2 Whether the appellant's suit should be reinstated to allow hearing on the merits.
Ratio Decidendi
The High Court found that the trial magistrate failed to exercise her discretion judiciously by refusing to set aside the dismissal order despite the appellant's counsel presenting a medical certificate explaining his absence. There was no evidence that the absence was intended to delay justice or prejudice the respondent. The court emphasized that dismissal is a drastic measure that should be exercised with caution, especially where the party seeking reinstatement demonstrates a plausible reason for nonattendance. The overriding objective is to do justice and allow parties to be heard on the merits. Consequently, the appeal was allowed, the dismissal order set aside, and the suit...
Court Disposition
appeal allowed; suit reinstated
Orders
- The appeal is allowed.
- The dismissal order is set aside.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CIVIL APPEAL NO. 246 OF 2012
DANIEL KABUBA MAINA.............................APPELLANT
VERSUS
MERCELLINE N. MURIITHI......................RESPONDENT
(Being an appeal against the Ruling of the Chief Magistrate Hon. T.W.C Wamae (Mrs)
delivered on 20th April, 2012 in CMCC No. 2778 of 2009)
JUDGMENT
The appellant’s suit in the lower court was dismissed for nonattendance of his advocate. Thereafter he filed an application to set aside the dismissal order and reinstatement of the suit so that it is heard and determined on merit. That application was equally dismissed because the trial magistrate did not believe the medical certificate presented by the advocate, the main reason being that the advocate visited the hospital a day after the suit had been dismissed.
After the dismissal of that application, this appeal was filed. The Memorandum of Appeal faults the trial magistrate for ignoring the evidence tendered before her and disallowing the appellant’s application. It is also alleged that she erred in failing to exercise her discretion judiciously to serve the interest of justice. Upon directions by the court for counsel to file submissions, only the counsel for the appellant complied.
There are no limits or restrictions on the judge’s discretion to set aside an adverse order because the main objective of the court is to do justice to the parties. – see Maina vs. Mugiria (1983) KLR 78 and Benjo Travellers Limited & Co. & Another vs. Mary Wangai Mutuku (2008) e KLR.
That discretion is intended to be exercised so as to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake or error. Court decisions have added that it should not be used to evade or otherwise obstruct the course of justice.
There is no suggestion whatsoever on the record that the failure of counsel to attend court on the date of hearing was intended to delay the course of justice, or cause hardship on the part of the defendant. Indeed, it was the appellant’s case that was coming up for hearing on the date it was dismissed. The trial court should have, on a balance of probabilities, exercised its discretion to set aside the dismissal order when counsel presented the medical report before her. In any case, dismissal of an action is a very drastic measure which results in locking out a party from the corridors of justice and should be exercised cautiously.
I am persuaded that this appeal should be allowed so that the parties have their day in court. Accordingly, this appeal succeeds and the dismissal order set aside. The suit is reinstated and the file shall be remitted to the lower court for hearing and determination on merit. This being an old case, the hearing dates shall be allocated on priority. Each party shall bear their own costs.
Dated, signed and delivered at Nairobi this 22nd Day of February, 2018.
A. MBOGHOLI MSAGHA
JUDGE