[2010] KEHC 252 (KLR)
The court found that there was uncertainty regarding whether the person named Evans, who allegedly fixed the hearing date, was authorized to act on behalf of the plaintiff's advocates. Given this doubt and the overriding objective of ensuring justice, the court resolved the ambiguity in favour of the plaintiff. The...
Source-derived case information.
- Citation
- [2010] KEHC 252 (KLR)
- Parties
- Plaintiff: Grace Wandia Mwathe & Another; Defendant: National Bank of Kenya Ltd
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 322 of 2003
- Procedural Posture
- Notice of Motion / Application to Set Aside Ex Parte Dismissal Order
- Outcome
- Application allowed; ex parte dismissal order set aside; suit reinstated.
- Judges
- FI Koome, CM Kariuki
- Legal Topics
- Setting Aside Ex Parte Orders, Judicial Discretion, Service of Hearing Notice
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Grace Wandia Mwathe & Another
Plaintiff
National Bank of Kenya Ltd
Defendant
Procedural Posture
Notice of Motion / Application to Set Aside Ex Parte Dismissal Order
Legal Issues
- 1 Whether the ex parte order dismissing the plaintiff's suit should be set aside for lack of service of hearing notice.
- 2 Whether the court should exercise its discretion to reinstate the suit in the interest of justice.
Ratio Decidendi
The court found that there was uncertainty regarding whether the person named Evans, who allegedly fixed the hearing date, was authorized to act on behalf of the plaintiff's advocates. Given this doubt and the overriding objective of ensuring justice, the court resolved the ambiguity in favour of the plaintiff. The court held that setting aside the ex parte dismissal would not prejudice the defendant except as to costs, which could be addressed at the conclusion of the suit. Therefore, the court exercised its discretion to set aside the dismissal order and reinstate the suit for hearing and determination.
Court Disposition
Application allowed; ex parte dismissal order set aside; suit reinstated.
Orders
- The order of 20th April, 2010 dismissing the suit is set aside.
- All consequential orders are set aside.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI COMMERCIAL COURTS
HCC NO. 322 OF 2003
GRACE WANDIA MWATHE & ANOTHER .........................................................................................PLAINTIFF
VERSUS
NATIONAL BANK OF KENYA LTD...................................................................................................DEFENDANT
RULING
1. This matter came up for hearing on 20th April, 2010 but on that day there was no appearance for the plaintiff or her counsel. The defendant was present Mr Milimo learned counsel for the defendant submitted that the date was taken by consent he had his witnesses in court and since there was no representation by the plaintiff he urged the court to dismiss the plaintiff’s suit. The court proceeded to dismiss the matter for lack of evidence with costs to the defendant.
2. On 26th April, 2010 the plaintiff filed the Notice of Motion seeking to set aside or review of the orders of 20th April, 2010 in which the plaintiff’s suit was dismissed. This application is premised on the grounds that the plaintiff was not aware the suit was coming up for hearing on 20th April, 2010. They were not served with a hearing notice. It is denied that the date was fixed by consent. It is denied that the person indicated on record as having attended the registry to fix the date by the name Evans is not known by the firm of Rombo & Company the advocates for the plaintiffs.
3. Counsel for the plaintiff submitted that the suit was dismissed by mistake the court should thus exercise its discretion to set aside the exparte orders in the interest of justice. This application was opposed by counsel for the defendant he relied on the replying affidavit by Zeporah Mogaka and Peter Musyoka Kisilu who attended the registry on 4t November, 2009 and fixed the hearing date with one Evans. It is contended that the same Mr. Evans had attended the registry before and fixed dates on behalf of Mr Rombo counsel for the plaintiff.
4. This application invokes the inherent jurisdiction of this court to set aside an exparte order which is an exercise of this courts discretion.The overarching objective of judicial discretion is to give a Judge flexibility to provide definitions according to the specifics of a particular case so as to ensure ends of justice are met and to prevent an abuse of the court process. (see the persuasive case of SHAH vs MBOGO &ANOTHER EALR {1967}EA page 116 Harris J held that:
5. In this case the plaintiff counsel alleged that the person called Evans who purported to fix dates on their behalf is not known to them. On the other hand, the defendants contend that the said Evans had taken dates on previous occasions on behalf of the firm of Rombo and Company Advocates. As the matter stand, it is not clear who Evans is whether he fraudulently held himself out as representing the firm of Rombo & company or Rombo and Company have found it easier to deny the knowledge of the said Evans. That doubt can only be resolved in favour of the plaintiff because setting aside the order will serve the interest of justice and will not cause prejudice to the defendant apart from cost which they can gain if they are successful in the final outcome of the case.
6. For the above reasons, I allow the application set aside the order of 20th April, 2010 and any other consequential orders and reinstate the suit for hearing and determination. Costs will abide the outcome of the suit.
Ruling signed and submitted for delivery on 9th day of November 2010
MARTHA KOOME
JUDGE
Delivered and countersigned on 12th day of November 2010.
P KIHARA KARIUKI
JUDGE