[2014] KEHC 8268 (KLR)
The court found that there was no evidence to contradict the plaintiff's claim that the suit was taken out of the hearing list at the call-over, and that the subsequent dismissal for non-attendance may have been made in error. The defendant did not oppose the application or provide any evidence to the contrary. In...
Source-derived case information.
- Citation
- [2014] KEHC 8268 (KLR)
- Parties
- Plaintiff: Francis M Mulwa; Defendant: Coast Bus Company
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 5168 of 1993
- Procedural Posture
- Civil Suit / Application for Review and Setting Aside of Dismissal Order
- Outcome
- Application allowed; dismissal order set aside; suit reinstated.
- Judges
- DW Mbuteti
- Legal Topics
- Dismissal for Non Attendance, Review of Court Orders, Reinstatement of Suit
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Francis M Mulwa
Plaintiff
Coast Bus Company
Defendant
Procedural Posture
Civil Suit / Application for Review and Setting Aside of Dismissal Order
Legal Issues
- 1 Whether the order dismissing the suit for non-attendance should be set aside.
- 2 Whether the suit should be reinstated for hearing on its merits.
Ratio Decidendi
The court found that there was no evidence to contradict the plaintiff's claim that the suit was taken out of the hearing list at the call-over, and that the subsequent dismissal for non-attendance may have been made in error. The defendant did not oppose the application or provide any evidence to the contrary. In the interests of justice, and given the plaintiff's compliance with pre-trial requirements and readiness to proceed, the court exercised its discretion to set aside the dismissal order and reinstate the suit for hearing on its merits.
Court Disposition
Application allowed; dismissal order set aside; suit reinstated.
Orders
- The order of dismissal of 17th October 2011 is set aside.
- The suit is reinstated for hearing.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL DIVISION
CIVIL SUIT NO 5168 OF 1993
FRANCIS M MULWA ..............................PLAINTIFF
VERSUS
COAST BUS COMPANY..................…..DEFENDANT
R U L I N G
1. This is an application seeking to review and set aside the order of 17th November 2011 (Waweru, J). By that order the Plaintiff’s suit was dismissed for non-attendance under Order 12, rule 1 of the Civil Procedure Rules, 2010(the Rules).
2. The grounds for the application given on the face thereof are –
(i) That the Plaintiff has a plausible claim in this suit and has overwhelming chances of success.
(ii) That the order sought is in the interests of justice.
3. There is a supporting affidavit sworn by the Plaintiff’s advocate, Kennedy Asinuli. He has deponed, inter alia, that on 29th September 2011 the case was taken out of the hearing list at the call-over because the Plaintiff had not complied with pre-trial procedures; that he was subsequently surprised to learn that the suit was dismissed on 17th October 2011; that the Plaintiff has since complied with pre-trial requirements; that he is ready to prosecute the suit without any further delay; and that it is only fair that the order of dismissal be set aside and the suit reinstated for hearing and determination on the merits
4. The Defendant was served with the application. No papers in response were filed, and there was no appearance for it at the hearing.
5. I have had occasion to comment in other matters that proceedings at call-over ought to be reflected in the files being called over. But apparently this is still not done. If a matter is taken out at call-over or some other order is made, surely this ought to be reflected on the file concerned! Otherwise how will anyone know that a certain order (for taking out for instance, as been claimed in the present application) was made in a file?
6. The possibility cannot be excluded that indeed this suit was taken out of the hearing list of 17th November 2012 by an order made in the call-over of 29th September 2011. At any rate there is no reply filed by the Defendant to gainsay the Plaintiff’s claim in that regard.
7. I will in the circumstances allow the present application and set aside the order of dismissal of 17th October 2011. This suit is hereby reinstated for hearing. The Plaintiff should take a date for pre-trial directions as soon as possible. Costs of the application shall be in the cause. Those will be the orders of the court.
DATED AND SIGNED AT NAIROBI THIS 30TH DAY OF SEPTEMBER 2014
H P G WAWERU
JUDGE
DELIVERED AT NAIROBI THIS 3RD DAY OF OCTOBER 2014