[2014] KEHC 7662 (KLR)
The court found that there was no evidence the applicant's counsel was aware of the hearing date that led to the dismissal. The counsel had previously attended court diligently, and the application to set aside the dismissal was made promptly upon discovery. The court held that the 2nd respondent would not suffer...
Source-derived case information.
- Citation
- [2014] KEHC 7662 (KLR)
- Parties
- Applicant: David Kimani Karogo; Respondent: Thika Land Disputes Tribunal; Respondent: Florence Gathoni Nduati; Respondent: Resident Magistrate’s Court Thika
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Judicial Review 78 of 2011
- Procedural Posture
- Judicial Review Application / Application to Set Aside Dismissal Order
- Outcome
- Application allowed; dismissal order set aside; suit reinstated.
- Legal Topics
- Setting Aside Dismissal, Non Attendance, Reinstatement of Suit, Judicial Review, Land Disputes
- 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
David Kimani Karogo
Applicant
Thika Land Disputes Tribunal
Respondent
Florence Gathoni Nduati
Respondent
Resident Magistrate’s Court Thika
Respondent
Procedural Posture
Judicial Review Application / Application to Set Aside Dismissal Order
Legal Issues
- 1 Whether the dismissal order issued on 12th November, 2012 for non-attendance should be set aside.
- 2 Whether the applicant's counsel had notice of the hearing date.
- 3 Whether reinstatement of the suit would prejudice the respondents.
Ratio Decidendi
The court found that there was no evidence the applicant's counsel was aware of the hearing date that led to the dismissal. The counsel had previously attended court diligently, and the application to set aside the dismissal was made promptly upon discovery. The court held that the 2nd respondent would not suffer prejudice if the matter was reinstated, and that the interests of justice favored substantive determination of the case. Accordingly, the dismissal order was set aside and the matter reinstated for hearing.
Court Disposition
Application allowed; dismissal order set aside; suit reinstated.
Orders
- The dismissal order issued on 12th November, 2012 is set aside.
- The ex-parte applicant's counsel is directed to have the matter listed for hearing on a priority basis.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
JUDICIAL REVIEW DIVISION
JR ELC CASE NO. 78 OF 2011
DAVID KIMANI KAROGO.............................................APPLICANT
VERSUS
THIKA LAND DISPUTES TRIBUNAL ...................1ST RESPONDENT
FLORENCE GATHONI NDUATI ...........................2ND RESPONDENT
RESIDENT MAGISTRATE’S COURT THIKA .........3RD RESPONDENT
RULING
By way of the application dated 28th March, 2013, the Applicant (David Kimani Karogo) who is the ex-parte Applicant in these judicial review proceedings prays that this Court sets aside the order issued on 12th November, 2012 dismissing his case. The application is supported by grounds on its face and a supporting affidavit sworn by the Applicant on 28th March, 2013.
The Applicant’s case is that on the day his case was dismissed, his counsel one Mr. Mutuku had arrived in Court late and the matter was called in his absence. The said advocate allegedly indicated in the file that the matter had been stood over generally. It was only on 27th February, 2013 when it was discovered that the matter had been dismissed for non-attendance.
The 1st Respondent (Thika Land Disputes Tribunal) and the 3rd Respondent (the Resident Magistrate’s Court at Thika), through counsel instructed by the Attorney General, indicated that they were leaving the matter to the Court. The 2nd Respondent (Florence Gathoni Nduati) opposed the application through a replying affidavit she sworn on 24th June, 2013. It is the 2nd Respondent’s case that the dismissal order was legally issued after the Applicant’s counsel failed to attend Court on 12th November, 2012.
I have carefully considered the application and find that when the matter came up for mention on 8th October, 2012 before Warsame, J (as he then was) the Applicant’s counsel was not in Court. The matter was then fixed for hearing on 12th November, 2012. There is no evidence that the Applicant’s counsel was aware of the hearing date. The Court record clearly shows that the Applicant’s counsel had consistently attended Court prior to the dismissal. The application was brought immediately upon the discovery of the dismissal of the case. The 2nd Respondent will not suffer any prejudice if this matter is reinstated to hearing. It is in the interests of justice that matters are dealt with substantively.
For all the foregoing reasons, I allow the application and set aside the dismissal order issued on 12th November, 2012. The ex-parte Applicant’s counsel is directed to have the matter listed for hearing on priority basis. Costs will be in the cause.
Dated, signed and delivered at Nairobi this 21st day of February, 2014
W. K. KORIR,
JUDGE OF THE HIGH COURT