[2018] KEHC 4974 (KLR)
The court found that the application to set aside the dismissal order was filed promptly, only six days after the order, and that the applicant's counsel satisfactorily explained the circumstances leading to the dismissal. The court emphasized that denying a party a hearing due to counsel's mistake should be a last...
Source-derived case information.
- Citation
- [2018] KEHC 4974 (KLR)
- Parties
- Applicant: Fredrick Oluoch Oduor; Respondent: Channan Agricultural Contractors Limited; Respondent: Kibos Sugar & Allied Industries Limited
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 90 of 2018
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Set Aside Dismissal and Reinstate Application
- Outcome
- Application allowed; dismissal order set aside; application reinstated; costs awarded to respondent.
- Judges
- TW Cherere
- Legal Topics
- Setting Aside Orders, Reinstatement of Application, Mistake of Counsel
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Fredrick Oluoch Oduor
Applicant
Channan Agricultural Contractors Limited
Respondent
Kibos Sugar & Allied Industries Limited
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Dismissal and Reinstate Application
Legal Issues
- 1 Whether the court should set aside the dismissal order of 11.7.18 and reinstate the application dated 22.5.18.
- 2 Whether the delay in bringing the application was unreasonable.
- 3 Whether the applicant should be denied a hearing due to counsel's mistake.
Ratio Decidendi
The court found that the application to set aside the dismissal order was filed promptly, only six days after the order, and that the applicant's counsel satisfactorily explained the circumstances leading to the dismissal. The court emphasized that denying a party a hearing due to counsel's mistake should be a last resort. Applying the overriding objective of the Civil Procedure Act, the court exercised its discretion to set aside the dismissal and reinstate the application for hearing, subject to the applicant paying throw away costs to the respondent.
Court Disposition
Application allowed; dismissal order set aside; application reinstated; costs awarded to respondent.
Orders
- The dismissal order of 11.7.18 is set aside.
- The application dated 22.5.18 is reinstated for hearing.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU
MISC APPLICATION NO. 90 OF 2018
FREDRICK OLUOCH ODUOR...................................................................APPLICANT
VERSUS
CHANNAN AGRICULTURAL CONTRACTORS LIMITED.........1ST RESPONDENT
KIBOS SUGAR & ALLIED INDUSTRIESLIMITED....................2ND RESPONDENT
RULING
1. By a notice of motion dated 17. 7.18 brought under Sections 1A, 1B, 3 and 3A of the Civil Procedure Act and Order 51 rule 1 & 15 of the Civil Procedure Rules, the applicant prays for orders: -
1) …………..Spent
2) THAT this Honourable Court be pleased to set aside the orders of 11. 7.18 dismissing the application dated 22. 5.18
3) That upon granting prayer (2) above, the Honourable Court be pleased to reinstate the application dated 22. 5.18
4) Costs be provided for
2. The application is based on the grounds among others that applicant’s advocate had sent another advocate to hold his brief and that advocate did not respond when the matter was called out. The application is also supported by an affidavit sworn on 17. 7.18 by Maureen Akoth Okumu, advocate for the applicant who reiterates the grounds on the face of the application.
3. The application is opposed on the grounds set out in the grounds of opposition dated and filed on 26. 7.18. Respondent contends that this application was been brought with unreasonable delay.
4. I have considered the notice of motion in the light of the supporting affidavit grounds of opposition. This application was filed 6 days after the dismissal order. It was therefore filed without delay.
5. The applicant’s counsel has explained, to the satisfaction of the court, the circumstances that led to the dismissal. It should be the court’s last resort to deny a party a chance to be heard on the basis of mistake by counsel. The overriding objective of the law is to facilitate the just, expeditious, proportionate and affordable resolution of disputes. Under the powers granted to this court by section 3A of the Civil Procedure Act, the notice of motion dated 8. 8.16 is allowed and application dated 22. 5.18 is reinstated for hearing. The applicant is condemned to pay Kshs 2,000/- to the respondent as throw away costs.
DATED AND DELIVERED AT KISUMU THIS 31ST DAY OF JULY 2018
T.W. CHERERE
JUDGE
Read in open court in the presence of-
Court Clerk - Felix
Applicant - Ms. Omolo h/b for Ms/ Okumu
Respondent - N/A