[2010] KEHC 2744 (KLR)
The court found that the plaintiff's failure to attend court on 15th June 2009 was due to a genuine and excusable mistake by the advocate's court clerk, who incorrectly recorded the hearing date. The court accepted the explanation provided in the affidavits and found no reason to doubt the candor of the plaintiff...
Source-derived case information.
- Citation
- [2010] KEHC 2744 (KLR)
- Parties
- Plaintiff: Herbert Akuma Gesimba; Defendant: Nathan Nyachieo Ogati
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 28 of 2004
- Procedural Posture
- Civil Suit / Ruling on Application to Set Aside Dismissal for Want of Prosecution
- Outcome
- Plaintiff's application allowed; suit reinstated; plaintiff to bear thrown away costs.
- Legal Topics
- Reinstatement of Suit, Dismissal for Want of Prosecution, Adverse Possession, Application Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Herbert Akuma Gesimba
Plaintiff
Nathan Nyachieo Ogati
Defendant
Procedural Posture
Civil Suit / Ruling on Application to Set Aside Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the plaintiff has shown sufficient cause to set aside the dismissal of the suit for want of prosecution.
- 2 Whether the application was properly brought by notice of motion instead of chamber summons.
- 3 Whether the delay in filing the application was undue.
Ratio Decidendi
The court found that the plaintiff's failure to attend court on 15th June 2009 was due to a genuine and excusable mistake by the advocate's court clerk, who incorrectly recorded the hearing date. The court accepted the explanation provided in the affidavits and found no reason to doubt the candor of the plaintiff and his advocate's clerk. The court further held that the application was properly brought by notice of motion under the relevant provisions of the Civil Procedure Act and Rules. Given that the matter involved a land claim, the court determined that it should be heard and determined on its merits rather than dismissed on a technicality. Accordingly, the court set aside the...
Court Disposition
Plaintiff's application allowed; suit reinstated; plaintiff to bear thrown away costs.
Orders
- The orders of 15th June 2009 dismissing the suit are set aside.
- The suit is reinstated for hearing on its merits.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA OF KISII
Civil Suit 28 of 2004
HERBERT AKUMA GESIMBA ……………………… PLAINTIFF
VERSUS
NATHAN NYACHIEO OGATI ……………………. DEFENDANT
RULING
On 15th June 2009 when this suit came up for hearing neither parties nor their respective advocates were in court and consequently the suit was dismissed for want of prosecution.The hearing date had been fixed by consent of the advocates for the parties through their respective court clerks.
On 8th July 2009 the plaintiff filed an application seeking to set aside the orders made on 15th June 2009 so that the suit can be reinstated to hearing.The application was supported by an affidavit sworn by the plaintiff as well as one Robert Ongera, a court clerk working with Zablon Mokua and Company Advocates who are on record for the plaintiff.The court clerk deposed that when he took the hearing date he made a mistake and wrote in his diary that the case was to come up for hearing on 16th June 2009 instead of 15th June 2009.
The plaintiff also stated in his affidavit that he had been informed by his advocate that the case was to be heard on 16th June 2009. When he came to court on that day together with his advocate they realized that the matter had been dismissed on the previous day.He urged the court to allow the application, considering that it was a land claim based on the doctrine of adverse possession.
The defendant opposed the said application and stated that the same was bad in law as it had been brought by way of a notice of motion instead of a chamber summons.He further stated that there was undue delay in filing the same, the suit having been dismissed on 15th of June 2009.
I have considered the brief submissions made by Mr. Mokua for the plaintiff and Mr. Soire for the defendant.
Considering that the plaintiff’s application was brought under various provisions of the law which includeorder IXB rules 1 & 17, sections 3 & 3Aof theCivil Procedure Actthe plaintiff rightly brought the application by way of a notice of motion.
As concerns the merit of the application, I have no reason to doubt the averments made by the plaintiff and Mr. Mokua’s court clerk.The said court clerk was candid that he made a mistake in diarizing the hearing date.That the plaintiff’s failure to attend court on 15th June 2009 was due to the wrong information that had been given to him by his advocate’s office.This is a land matter which ought to be determined on its merits.
Consequently, I allow the plaintiff’s application and set aside this court’s orders issued on 15th June 2009. The plaintiff shall however bear all thrown away costs of the suit.
DATED, SIGNED AND DELIVERED AT KISII THIS 24TH DAY OF MARCH, 2010.
D. MUSINGA
JUDGE.
24/3/2010
Before D. Musinga, J.
Mobisa – cc
N/Afor the Plaintiff
N/A for the Defendant
Court:Ruling delivered in open court on 24th March, 2010.
D. MUSINGA
JUDGE.