[2010] KEHC 647 (KLR)
The court found that the plaintiff's advocate provided a plausible and genuine explanation for failing to attend court, namely a clerical error that was not intentional. The court held that it would be unjust to penalize the plaintiff for the advocate's mistake. The court further determined that it was premature to...
Source-derived case information.
- Citation
- [2010] KEHC 647 (KLR)
- Parties
- Plaintiff: Eunice Wambui Kigera; Plaintiff: Peter Muiruri Kigera; Defendant: John Gitau Gathenya; Defendant: David Mwaura Gathenya
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 5911 of 1992
- Procedural Posture
- Civil Suit / Application for Reinstatement of Dismissed Application
- Outcome
- Application for reinstatement allowed; order of dismissal set aside; application reinstated for hearing; costs to the respondent.
- Judges
- GG Okwengu
- Legal Topics
- Reinstatement of Application, Non Attendance, Substitution of Parties, Abatement of Suit
- 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
Eunice Wambui Kigera
Plaintiff
Peter Muiruri Kigera
Plaintiff
John Gitau Gathenya
Defendant
David Mwaura Gathenya
Defendant
Procedural Posture
Civil Suit / Application for Reinstatement of Dismissed Application
Legal Issues
- 1 Whether the application dismissed for non-attendance should be reinstated.
- 2 Whether the explanation for non-attendance by the plaintiff's advocate is sufficient.
- 3 Whether the substitution of parties was proper and if the suit had abated.
Ratio Decidendi
The court found that the plaintiff's advocate provided a plausible and genuine explanation for failing to attend court, namely a clerical error that was not intentional. The court held that it would be unjust to penalize the plaintiff for the advocate's mistake. The court further determined that it was premature to consider the merits of the application sought to be reinstated at this stage. Justice and fairness required that the application be reinstated so that the parties could fully ventilate their arguments. Accordingly, the order dismissing the application was set aside, and the application was reinstated for hearing, with costs awarded to the respondent.
Court Disposition
Application for reinstatement allowed; order of dismissal set aside; application reinstated for hearing; costs to the respondent.
Orders
- The chamber summons dated 15th June, 2010 is allowed.
- The order of dismissal made on 14th May, 2009 is set aside.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLICOFKENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
LAND AND ENVIRONMENTAL LAW DIVISION
CIVIL SUIT NO.5911 OF 1992
EUNICE WAMBUI KIGERA
PETER MUIRURI KIGERA.…………...………….PLAINTIFFS
VERSUS
JOHN GITAU GATHENYA……………………....1ST DEFENDANT
DAVID MWAURA GATHENYA...………………2ND DEFENDANT
R U L I N G
1. On 14th May, 2009, the plaintiff’s application dated 25th November, 2004 was dismissed for non-attendance. The plaintiff is now pleading with this court to reinstate the said application. His advocate Gachoka Mwangi has sworn an affidavit in support of the application. The advocate takes responsibility for failure to attend court, explaining that his former clerk did not record the matter in his diary. Counsel pleads that his absence was not intentional but as a result of a genuine mistake.
2. The defendants objects to the application contending that the reasons given for non-attendance is not convincing.It is maintained that the plaintiff’s suit abated sometime back after the death of the original plaintiff, and that the substitution of Eunice Wambui Kigera was irregular. It was contended that the application sought to be reinstated, which seeks to substitute Eunice Wambui Kigera with Peter Muiruri Kigera will serve no meaningful purpose as Eunice Wambui Kigera was not properly on record. Counsel for the respondent further argued that the application has been overtaken by events as Eunice Wambui Kigera who was sought to be substituted due to senility had already died.
3. I have given due consideration to this application. Counsel for the plaintiff has given a plausible explanation for his failure to attend court. The plaintiff ought not to be made to suffer for a mistake which was not of his making. The respondents have opposed the application questioning the merits of the application sought to be reinstated. However, it would be premature for the court to go into the merits of that application at this stage. It is fair and just that the application be reinstated to hearing and that the parties be given an opportunity to fully ventilate their arguments.
4. Accordingly, the chamber summons dated 15th June, 2010 is allowed and the order of dismissal made on 14th May, 2009 set aside and the application dated 25th November, 2004 reinstated to hearing. The applicant shall pay costs of the application.
Dated and delivered this 5th day of November, 2010
H. M. OKWENGU
JUDGE
In the presence of: -
Advocate for the plaintiffs absent
Ms Kisa H/B for Ngugi for the defendants
B. Kosgei - Court clerk