[2005] KEHC 559 (KLR)
The court found that the plaintiffs' failure to attend court was due to circumstances beyond their control, specifically the death of their advocate, who was fatally shot and died before the hearing date. The plaintiff made reasonable efforts to contact the advocate and, upon learning of his death, acted promptly to...
Source-derived case information.
- Citation
- [2005] KEHC 559 (KLR)
- Parties
- Plaintiff: Esther Wanjiku Njoroge & Another; Defendant: Jaswidner Singh Enterprises
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 756 of 2002
- Procedural Posture
- Civil Case / Application to Set Aside Dismissal for Non Attendance
- Outcome
- Application to set aside dismissal granted.
- Legal Topics
- Setting Aside Orders, Non Attendance, Dismissal of Suit, Good Cause Requirement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Esther Wanjiku Njoroge & Another
Plaintiff
Jaswidner Singh Enterprises
Defendant
Procedural Posture
Civil Case / Application to Set Aside Dismissal for Non Attendance
Legal Issues
- 1 Whether the plaintiffs have shown sufficient cause to set aside the dismissal order for non-attendance.
- 2 Whether the explanation for non-attendance due to the advocate's death constitutes good cause.
Ratio Decidendi
The court found that the plaintiffs' failure to attend court was due to circumstances beyond their control, specifically the death of their advocate, who was fatally shot and died before the hearing date. The plaintiff made reasonable efforts to contact the advocate and, upon learning of his death, acted promptly to instruct new counsel and seek to set aside the dismissal. The court accepted this explanation as constituting good cause and reason to set aside the dismissal order for non-attendance, exercising its discretion under Order 9B Rule 8 of the Civil Procedure Rules.
Court Disposition
Application to set aside dismissal granted.
Orders
- The order dismissing the suit for non-attendance is set aside.
- Costs of the application will be in the cause.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
Civil Case 756 of 2002
ESTHER WANJIKU NJOROGE & ANOTHER ………..…………….. PLAINTIFF
VERSUS
JASWIDNER SINGH ENTERPRISES ………………………………DEFENDANT
RULING
I: INTRODUCTION
1. Under order 9b r 8 Civil Procedure Rules the plaintiffs/applicant seeks this court orders to set aside the dismissal orders given by this court on 5th February 2003 for non-attendance to court.
2. The plaintiffs filed suit as legal representative of one George Gache Njuguna – (now deceased) for damage for the fatal injuries sustained as result of a road traffic accident that occurred on 27 July 2001.
3. The plaintiffs were represented by the firm of M/s Mutunga Rebiro and company advocates. I am made to believe that it is a sole practitioners practice.
4. On 8 October 2002 the said firm took hearing dates for the suit to be heard. This was for 5th February 2003. A call over would normally be held in the month of January 2003 confirm the dates for hearing.
5. The suit was duly confirmed for hearing. On that day the plaintiff and her advocate failed to appear to court and the suits was duly dismissed for non attendance of the plaintiff. The defendants had representation.
6. The plaintiff No.1 states that she visited her advocate office thrice. In the month of December 2002 and January 2003 and found his offices closed. She finally traced her file to his widow. On receiving the file she then had filed a notice of change of advocate through her current new advocates.
7. It transpired that her former advocate had been fatally shot and wounded with a gun. He died on the 21 December 2002 at Kenyatta National Hospital. The plaintiff were therefore unable to attend court due to this predicament.
8. I would accept this explanation and hold that the explanation given is “ a good cause and reasons” to set aside my orders dismissing this suit for non-attendance.
The costs of this application will be in the cause.
Dated this 27th day of September 2005 at Nairobi.
M.A. ANG’AWA
JUDGE
Ndumu Kimani & Co. Advocates for the plaintiff
A.W. Njogu & Co. Advocates for the defendant.