[2004] KEHC 2194 (KLR)
The court found that both the plaintiff and his counsel were absent on the hearing date due to an oversight by counsel's clerk, who failed to record the date in the diary. The court accepted the explanation as satisfactory, notwithstanding the delay in bringing the application for reinstatement. The judge exercised...
Source-derived case information.
- Citation
- [2004] KEHC 2194 (KLR)
- Parties
- Plaintiff: Ernest Motanya Nyaboga; Defendant: John Masita t/a Nuru Chemist
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- ? 133 of 1998
- Procedural Posture
- Civil Case / Application for Reinstatement of Suit After Dismissal
- Outcome
- Application allowed. Suit reinstated for hearing.
- Legal Topics
- Reinstatement of Suit, Dismissal for Non Attendance, Application for Setting Aside, Throw Away Costs
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ernest Motanya Nyaboga
Plaintiff
John Masita t/a Nuru Chemist
Defendant
Procedural Posture
Civil Case / Application for Reinstatement of Suit After Dismissal
Legal Issues
- 1 Whether the suit should be reinstated after dismissal for non-attendance by the plaintiff and counsel.
- 2 Whether the explanation for non-attendance is satisfactory to warrant setting aside the dismissal order.
- 3 Whether the applicant should pay throw away costs to the respondent.
Ratio Decidendi
The court found that both the plaintiff and his counsel were absent on the hearing date due to an oversight by counsel's clerk, who failed to record the date in the diary. The court accepted the explanation as satisfactory, notwithstanding the delay in bringing the application for reinstatement. The judge exercised discretion to set aside the dismissal order and reinstate the suit, on condition that the applicant pays throw away costs to the respondent before setting a new hearing date. The costs are to be agreed upon or taxed by the taxing master.
Court Disposition
Application allowed. Suit reinstated for hearing.
Orders
- The order dismissing the suit is set aside.
- The suit is reinstated for hearing.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISII
CIVIL CASE NO.133 OF 1998ERNEST MOTANYA NYABOGA ………………………………… PLAINTIFF.
VERSUS
1. JOHN MASITA ) T/A NURU CHEMIST ) ……………………………………. DEFENDANT.RULING
The applicant/plaintiff seeks court to reinstate the suit for hearing. The suit was fixed for hearing on 25th April 2002. On that day the plaintiff and his counsel did not appear in court. The suit was therefore dismissed.
Ms. Obaga for the applicant submitted that due to an oversight the hearing date was not put in her diary by her clerk. She did not therefore inform the plaintiff of the hearing date. She also did not attend court. It is much later she realized the suit had been dismissed.
Mr. Anyona opposed the application.
I have considered the application.Indeed counsel and her client were not in court on the day the suit was dismissed. The counsel has however explained the reason why they failed to attend court. This explanation is satisfactory. It is true that this application was brought long after suit was dismissed but the reason has been explained.
I allow the application and set aside the order dismissing the suit. The suit is reinstated for hearing. The applicant will however pay the Respondent throw away costs before setting the date for hearing. The costs should be agreed upon or be taxed by the taxing master.
It is so ordered.
KABURU BAUNIJUDGE.28/7/04
Dated 27th July 2004
KABURU BAUNIJUDGE.