[2014] KEHC 7432 (KLR)
The court found that the plaintiffs' failure to attend court was occasioned by a genuine mistake on the part of their advocate, who misrecorded the case details and failed to appear. The court held that it would be unjust to punish the plaintiffs for a mistake they did not contribute to. As the application was...
Source-derived case information.
- Citation
- [2014] KEHC 7432 (KLR)
- Parties
- Plaintiff: Gregory Kitema Kitonga; Plaintiff: Nancy Mutindi Mutua; Defendant: Festus Muasa Ndonye
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Civil Case Case11 of 2009
- Procedural Posture
- Civil Case / Ruling on Application to Reinstate Suit After Dismissal for Non Attendance
- Outcome
- Application allowed; suit reinstated.
- Judges
- LN Mutende
- Legal Topics
- Reinstatement of Suit, Dismissal for Non Attendance, Mistake of Counsel
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Gregory Kitema Kitonga
Plaintiff
Nancy Mutindi Mutua
Plaintiff
Festus Muasa Ndonye
Defendant
Procedural Posture
Civil Case / Ruling on Application to Reinstate Suit After Dismissal for Non Attendance
Legal Issues
- 1 Whether the plaintiffs' suit should be reinstated after dismissal for non-attendance due to their advocate's mistake.
Ratio Decidendi
The court found that the plaintiffs' failure to attend court was occasioned by a genuine mistake on the part of their advocate, who misrecorded the case details and failed to appear. The court held that it would be unjust to punish the plaintiffs for a mistake they did not contribute to. As the application was unopposed and the plaintiffs demonstrated sufficient cause, the court exercised its discretion to set aside the order dismissing the suit and reinstated the matter.
Court Disposition
Application allowed; suit reinstated.
Orders
- The order dismissing the suit is set aside.
- The suit is reinstated as prayed.
Full Case Text
Judgment text and source record
20 paragraphs
176/2014
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
CIVIL CASE NO. 11 OF 2009
1. GREGORY KITEMA KITONGA
2. NANCY MUTINDI MUTUA (suing as legal and personal representatives of the estate of PETER MUTOEWA GREGORY THOMBO (DECEASED)
..........................................................................................................................PLAINTIFFS
VERSUS
FESTUS MUASA NDONYE .....................................................................DEFENDANT
RULING
In an application dated 12th June, 2013, the Applicants/Plaintiffs seek this court’s order reinstating their suit that was dismissed on the 17th September, 2012 for non-attendance.
The application is premised on the grounds that failure to attend court was occasioned by counsel who held brief for the advocate who was acting for them; a mistake that should not be visited upon them and failure to prosecute the case would result into suffering irreparable loss.
The application is supported by an affidavit sworn by Agnes Mutunga an advocate retained by the plaintiffs who depones that she had instructed one Musembi Kitindio Advocate to hold her brief on the material date but he mistook the matter to be in the Lower Court. As result it was dismissed.
A further affidavit in support of the application was sworn by Kitindio Musembi the advocate who held brief in the matter who depones that he inadvertently recorded the matter as CMCC No. 11/2009 in his diary. He checked the cause-list and the matter had not been listed on the cause- list. He conveyed the message to the applicant’s counsel. It was later that he learnt that the matter was in the High Court and had been dismissed.
The application is unopposed. The applicants have demonstrated that the mistake was made by their advocate. It will be unjust for them to be punished for a mistake they did not contribute to. In the circumstances I do set aside the order dismissing the suit.
Accordingly it is reinstated as prayed.
No orders as to costs.
DATED, DELIVERED and SIGNEDthis 23rdday of JANUARY, 2014.
L.N. MUTENDE
JUDGE