[2001] KEHC 443 (KLR)
The court found that sufficient reason was demonstrated for the applicant's counsel's failure to attend court on 28.7.99, namely, the mechanical breakdown of the vehicle transporting him from Nairobi to Machakos. The court exercised its discretion under Order 9B Rule 8 of the Civil Procedure Rules and Section 3A of...
Source-derived case information.
- Citation
- [2001] KEHC 443 (KLR)
- Parties
- Applicant: Fredrick M. Mulinge; Respondent: Mulandi Kyondo
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Civil Miscellaneous 116 of 1999
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Set Aside Dismissal and Reinstate Application
- Outcome
- Application allowed; dismissal order set aside; application reinstated; costs to respondent.
- Legal Topics
- Setting Aside Orders, Reinstatement of Application, Non Appearance, Exercise of Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Fredrick M. Mulinge
Applicant
Mulandi Kyondo
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Dismissal and Reinstate Application
Legal Issues
- 1 Whether sufficient cause was shown to set aside the dismissal order made on 28.7.99 due to non-appearance of the applicant's counsel.
- 2 Whether the application dated 12.7.99 should be reinstated and heard inter partes.
- 3 Whether temporary stay orders should be reinstated and extended.
Ratio Decidendi
The court found that sufficient reason was demonstrated for the applicant's counsel's failure to attend court on 28.7.99, namely, the mechanical breakdown of the vehicle transporting him from Nairobi to Machakos. The court exercised its discretion under Order 9B Rule 8 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act to set aside the dismissal order, reinstate the application dated 12.7.99, and restore the temporary stay orders. The court noted that the precise timing of counsel's departure from Nairobi was not determinative, as the breakdown constituted a valid and sufficient cause for non-appearance. Costs of the application were awarded to the respondent.
Court Disposition
Application allowed; dismissal order set aside; application reinstated; costs to respondent.
Orders
- The dismissal order of 28.7.99 is set aside.
- The application dated 12.7.99 is reinstated and to be heard inter partes.
Full Case Text
Judgment text and source record
37 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
CIVIL MISCELLANEOUS APPLICATION NO. 116 OF 1999
FREDRICK M. MULINGE :::::::::::::::::::::::::::::::::::::::: APPELLANT
VERSUS
MULANDI KYONDO ::::::::::::::::::::::::::::::::::::::::::: RESPONDENT
Coram: J. W. Mwera J.
Kituku Advocate for applicant
Mbiti Advocate for Respondent
C.C. Muli
************************
R U L I N G
The applicant under O9B r. 8, Civil Procedure Rules and S. 3A Civil
Procedure Act desires this court to set aside its orders of 28. 7.99 by which the
applicant’s application dated 12. 7.99 was dismissed because this very applicant had
not appeared on the said 28. 7.99 to prosecute that application. It is desired that that
application of 12. 7.99 be reinstated and heard inter partes. Mr. Kituku argued further
that temporary stay orders that had been in place be reinstated and extended because
the Respondent was executing for costs which the lower court had not assessed but
instead taxed.
The court heard that the applicant’s lawyer Mr. Mwinzi was travelling from
Nairobi to Machakos on 28. 7.99 by public means to prosecute the application dated
12. 7.99. The motor vehicle he was in broke down near Athi River and that by the
time he arrived at the courthouse the orders complained of had already been made.
That for that reason may the orders prayed be given. Mr. Mbiti was of the view that
infact Mr. Mwinzi was already late when he left Nairobi by public means at 8 a.m. to
Machakos on 28. 7.99. He could hardly make it to begin the court session of the day
at 9. 15 a.m.
Having heard both sides the orders prayed are granted. Sufficient reason is
shown why Mr. Mwinzi could not arrive in court on time to prosecute the application
dated 12. 7.99. The motor vehicle he was travelling in suffered mechanical breakdown
on the way. Whether he took a risk to leave Nairobi at 8 a.m. or whether this
court believes his reason is neither here nor there.
Orders as prayed but costs to the Respondent.
Delivered on 20th June 2001.
J. W. MWERA
JUDGE