[2004] KEHC 339 (KLR)
The court found that although the delay in seeking reinstatement was inordinate, the plaintiff's explanation—being hospitalized and residing in a remote area with poor communication—constituted good cause. The judge exercised discretion to allow the application, noting that North Eastern Province was historically...
Source-derived case information.
- Citation
- [2004] KEHC 339 (KLR)
- Parties
- Plaintiff: Hassan Noor Mahmoud; Defendant: Tae Young Ann & Others
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 2068 of 2000
- Procedural Posture
- Civil Case / Application for Reinstatement After Dismissal for Non Attendance
- Outcome
- Application allowed; suit reinstated.
- Legal Topics
- Dismissal for Non Attendance, Reinstatement of Suit, Delay in Prosecution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Hassan Noor Mahmoud
Plaintiff
Tae Young Ann & Others
Defendant
Procedural Posture
Civil Case / Application for Reinstatement After Dismissal for Non Attendance
Legal Issues
- 1 Whether the plaintiff has shown sufficient cause for non-attendance on the hearing date.
- 2 Whether the delay in seeking reinstatement of the suit is excusable.
- 3 Whether the suit should be reinstated despite opposition from the defendant.
Ratio Decidendi
The court found that although the delay in seeking reinstatement was inordinate, the plaintiff's explanation—being hospitalized and residing in a remote area with poor communication—constituted good cause. The judge exercised discretion to allow the application, noting that North Eastern Province was historically remote, which justified the plaintiff's difficulties in communicating with his advocate and following up on the case. The suit was reinstated on condition that the plaintiff pays throw away costs to the defendant.
Court Disposition
Application allowed; suit reinstated.
Orders
- The suit is reinstated.
- Plaintiff to pay throw away costs of Ksh.5,000 to the defendant.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
Civil Case 2068 of 2000
HASSAN NOOR MAHMOUD ……………………….....………………PLAINTIFF
VERSUS
TAE YOUNG ANN & OTHERS .…………………………………..DEFENDANT
RULING
On the day called out for hearing of this suit on the 6. 11. 02 the plaintiff failed to attend court. The suit was duly dismissed for none attendance.
The plaintiff’s explanation of his absence is that he was admitted to hospital between 1. 11. 02 and 16. 11. 02. He never got in touch with his advocate thereafter nor did he make inquiries of his case till about 4 years later.
This delay is really inordinate. It is though seen that the plaintiff comes from North of Kenya ie North Eastern Province. The communication between there and Nairobi was not very good and he would send emissaries who would not pass messages to him.
The application is opposed to have his suit reinstated. The defendant has closed their files and there is nothing left in this matter.
I would call “good cause” the distant in which the plaintiff had to communicate with his lawyers. North Eastern used to be remote, though it no longer is such.
I would allow this application and reinstate the suit with costs to the plaintiff assessed at throw away costs of Ksh.5,000/-.
This suit be set down for hearing after payment of the costs to the defendant and pre trial issue settled.
Dated this 24th day of November, 2004 at Nairobi.M.A. Ang’awa
Judge
Chaundhri & Associates Co. Advocates for the plaintiff
Riunga Raiji & Co. Advocates for the defendant