[2004] KEHC 581 (KLR)
The court found that although there was a significant delay from January to June 2003 in filing the application to set aside the dismissal order, both the defendant's advocate and Father Nyaanga provided affidavits explaining the circumstances of the delay, including miscommunication and administrative error. While...
Source-derived case information.
- Citation
- [2004] KEHC 581 (KLR)
- Parties
- Plaintiff: Doctor Robert Onsare Monda; Defendant: The Catholic Diocese of Kisii
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- ? 37 of 2002
- Procedural Posture
- Civil Case / Application to Set Aside Dismissal and Reinstate Defence
- Outcome
- application allowed; defence reinstated
- Legal Topics
- Setting Aside Orders, Reinstatement of Defence, Delay in Compliance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Doctor Robert Onsare Monda
Plaintiff
The Catholic Diocese of Kisii
Defendant
Procedural Posture
Civil Case / Application to Set Aside Dismissal and Reinstate Defence
Legal Issues
- 1 Whether the defendant has provided a sufficient explanation for the delay in complying with discovery orders.
- 2 Whether the court should set aside the order striking out the defence and reinstate the defence.
Ratio Decidendi
The court found that although there was a significant delay from January to June 2003 in filing the application to set aside the dismissal order, both the defendant's advocate and Father Nyaanga provided affidavits explaining the circumstances of the delay, including miscommunication and administrative error. While the court acknowledged that the advocate should have acted more diligently, it held that, considering all circumstances, the explanation for the delay was excusable. Therefore, the court exercised its discretion to set aside the order striking out the defence and reinstated the defence, subject to compliance with Order 10 rule 11(a) within 14 days.
Court Disposition
application allowed; defence reinstated
Orders
- The order dated 28/1/03 dismissing the defence is set aside.
- The defence is reinstated.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISII
CIVIL CASE NO.37 OF 2002
DOCTOR ROBERT ONSARE MONDA …………………………… PLAINTIFF
VERSUS
THE CATHOLIC DIOCESE OF KISII ………………………… DEFENDANT.
RULING
On 9/12/02 an application by the plaintiff the defendant was given 10 days to make discoveries. He did not do so and on 28/1/03 the court struck out the defence.
There after the case was set down for formal proof on several occasion but due to one reason or another hearing did not take off. On 3/6/03 the defendant bought this application seeking to set aside the dismissal order and to reinstate the defendants defence. It was submitted that on 9/12/02 Mr. Soire was holding brief for Mr. Nyangau for the defendant. After the order he wrote to him informing him they have been given 30 days to serve their documents. Mr Nyangau deponed that he received Mr. Soire’s letter on 15/1/03. He then wrote to his client to furnish him with the documents.
FATHER LAWRENCE NYAANGA deponed that when the letter was received it was mistakenly filed in office.
The application was opposed and it was submitted that the delay was inordinate and the lawyer did not act diligently. I concur that there was quite some delay from January 2003 to June when the application was filed. But both the lawyer and Father Nyaanga in their affidavits have explained the delay. True the lawyer should have been more diligent but taking into account all circumstances the explanation for the delay is excusable.
I therefore allow the application and set aside the court’s order dated 28/1/03 dismissing the defence. The defence is hereby reinstated. The defendant should comply with order 10 rule 11(a) within 14 days from today’s date.
The applicant will pay the Respondent costs of this application assessed at shs.1500/=.
Signed, dated and delivered on 23rd March 2004.
KABURU BAUNI
JUDGE.
23/3/2004
Mr. Momanyi for the plaintiff.
N/A for Applicant.
Order:- Mr. Momanyi to extract the Order and serve it on Mr. Nyangau.
KABURU BAUNI
JUDGE.