[2017] KEHC 788 (KLR)
The court found that the applicant's counsel's failure to attend court was not deliberate but was occasioned by an encounter with NTSA personnel, which caused a delay. The court took judicial notice of the regular presence of NTSA along the route and accepted the explanation and apology. The court held that it would...
Source-derived case information.
- Citation
- [2017] KEHC 788 (KLR)
- Parties
- Plaintiff: Directline Assuarance Company Limited; Defendant: Victor Ezra Osewe Mak’Osewe
- Court
- High Court
- Court Station
- High Court at Homa Bay
- Jurisdiction
- Kenya
- Case Number
- Civil Case 6 of 2016
- Procedural Posture
- Civil Case / Ruling on Application to Set Aside Dismissal and Reinstate Application
- Outcome
- application allowed; dismissal order set aside; application reinstated
- Legal Topics
- Setting Aside Orders, Reinstatement of Application, Non Attendance, Want of Prosecution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Directline Assuarance Company Limited
Plaintiff
Victor Ezra Osewe Mak’Osewe
Defendant
Procedural Posture
Civil Case / Ruling on Application to Set Aside Dismissal and Reinstate Application
Legal Issues
- 1 Whether the court should set aside the dismissal order made for non-attendance and reinstate the application.
- 2 Whether the applicant's counsel's failure to attend court was deliberate or excusable.
Ratio Decidendi
The court found that the applicant's counsel's failure to attend court was not deliberate but was occasioned by an encounter with NTSA personnel, which caused a delay. The court took judicial notice of the regular presence of NTSA along the route and accepted the explanation and apology. The court held that it would be unjust to let the client suffer for counsel's excusable mistake. Therefore, the court exercised its discretion to set aside the dismissal order and reinstated the application for hearing.
Court Disposition
application allowed; dismissal order set aside; application reinstated
Orders
- The orders dismissing the application dated 16th May 2017 are set aside.
- The application dated 16th May 2017 is reinstated for hearing.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT HOMA BAY
CIVIL CASE NO 6 OF 2016
DIRECTLINE ASSUARANCE COMPANY LIMITED...PLAINTIFF
VERSUS
VICTOR EZRA OSEWE MAK’OSEWE.......................DEFENDANT
RULING
1. The application dated 3rd August 2013 prays for setting aside and/or review of the orders dated 19th July 2017 dismissing the application dated 16th May 2017. It also urges the court to reinstate the dismissed application which was dismissed for non attendance/want of prosecution, on grounds that the failure by counsel to attend court and prosecute the application was not deliberate.
2. The applicant’s counsel in a supporting affidavit explains that he arrived in court at 9. 55am only to find that the application had been dismissed, but this delay was as a result of his encounter with the National Transport and Safety Authority (NTSA) who intercepted him on a motor vehicle inspection exercise along the Kisii-Homa Bay road. There was a long delay before the said personnel could allow him to carry on with his journey and he has apologized to the court for the delay and urged that his mistake should not be visited upon his client.
3. I am aware of the regular presence of the NTSA personnel along the said route which I have had occasion to use, and take judicial notice that an encounter with them may not always be a one minute dismissal. I also take cognizance of counsel’s remorsefulness and that indeed if the prayers are not granted his client will suffer for no fault of their own. I find it prudent to grant the orders sought and do hereby set aside the orders dismissing the application dated 16th May 2017 and the same is reinstated for hearing.
4. The costs shall be in cause.
Delivered and dated this 3rd day of October, 2017 at Homa Bay
H.A.OMONDI
JUDGE