[2015] KEHC 7311 (KLR)
The court found that the plaintiff had demonstrated a credible and honest explanation for the failure to attend court on the hearing date, namely a diary error by the advocate's office. The court noted that such mistakes are possible, particularly in busy law firms, and that the plaintiff had shown consistent...
Source-derived case information.
- Citation
- [2015] KEHC 7311 (KLR)
- Parties
- Plaintiff: Hezron Obadiah; Defendant: Alphonse Oladipo; Defendant: Tubman Otieno
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 318 of 2011
- Procedural Posture
- Civil Case / Ruling on Application to Set Aside Dismissal and Reinstate Suit
- Outcome
- Application allowed; order of dismissal set aside; suit reinstated for hearing.
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Dismissal for Non Attendance, Setting Aside Orders, Reinstatement of Suit, Judicial Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Hezron Obadiah
Plaintiff
Alphonse Oladipo
Defendant
Tubman Otieno
Defendant
Procedural Posture
Civil Case / Ruling on Application to Set Aside Dismissal and Reinstate Suit
Legal Issues
- 1 Whether the court should set aside the order dismissing the suit for non-attendance of the plaintiff or his advocate.
- 2 Whether the explanation for non-attendance constitutes sufficient cause to warrant reinstatement of the suit.
Ratio Decidendi
The court found that the plaintiff had demonstrated a credible and honest explanation for the failure to attend court on the hearing date, namely a diary error by the advocate's office. The court noted that such mistakes are possible, particularly in busy law firms, and that the plaintiff had shown consistent willingness to prosecute the suit. The court exercised its discretion in favour of setting aside the dismissal, emphasizing that justice is best served by hearing and determining cases on their merits rather than on technicalities. Accordingly, the order of dismissal was set aside and the suit reinstated for hearing.
Court Disposition
Application allowed; order of dismissal set aside; suit reinstated for hearing.
Orders
- The order of dismissal of 2nd December 2014 is hereby set aside.
- The suit is reinstated for hearing.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL DIVISION
CIVIL CASE NO 318 OF 2011
HEZRON OBADIAH………..........................................PLAINTIFF
VERSUS
1. ALPHONSE OLADIPO
2. TUBMAN OTIENO.……………………………………..DEFENDANTS
RULING
1. On 2nd December 2014 the Court (Mbogholi, J) dismissed the Plaintiffs’ suit herein for non-attendance of the Plaintiff or his advocate at hearing.
2. The Plaintiffs then filed this Notice of Motion dated 2nd December 2014 seeking an order to set aside the dismissal and reinstatement of the suit for hearing. The application is brought under Sections 80 and 3A of the Civil Procedure Act (the Act); Order 51 and Order 12, rule 7 of the Civil Procedure Rules (the Rules) which rule bestows on the Court an unfettered discretion to vary or set aside such orders of dismissal “upon such terms as may be just”.
3. The main ground for the application appearing on the face thereof is that, the failure to attend the hearing of 3rd March 2011 by the Plaintiffs and/ortheir advocates was due to an honest mistake and omission on the part of the advocates which should not be visited on the Plaintiff. The honest mistake and omission is explained in the supporting affidavit and supplementary affidavit sworn on 2nd December 2014 and 26th March 2015 respectively by the Plaintiff’s advocate, Akoth Lumumbah.
4. The explanation is that the hearing date issued to the advocates at the registry was 4th December 2014and yet the matter came up for hearing on 2nd December 2014; that the order was made through no fault of the Plaintiff which thus should not be visited upon him; that the Plaintiff is keen on prosecuting the suit and towards that end actively pursued getting a hearing date; that when it was realized that the matter had been inadvertently diarized for the 4th December 2014 instead of 2nd December 2014, he rushed to court only to find that it had been called out and order for dismissal made; that there is no delay in filing this application; that the Plaintiff stands to suffer great prejudice hence is it only fair and in the interest of justice that the order be set aside and the suit reinstated.
5. The Defendants have opposed the application by replying affidavitsworn by its Counsel, Charles Gombaon18th March 2015. The grounds of opposition emanating therefrom are that the Plaintiff’s Advocate’s excuse for failing to appear at the hearing of the suit is insufficient and a mere afterthought; that there is no evidence tendered to support the claim that the advocates mistook the date for 4th December 2014; that the non-attendance is thus inexcusable.
6. After perusal of the court record it is clear that the case had been fixed for hearing by consent of the parties for 18thOctober 2012but apparently it was taken out of the hearing list due to shortage of judges. It was again mentioned on 6th February 2013 where pre-trial directions were taken and the Plaintiff was urged to comply with all pre-trial requirements. After it was confirmed that the suit was ready for hearing on 27th February 2013, the case was fixed for hearing for 2nd December 2014 by a representative of the Plaintiff.
7. The Plaintiff has all along shown willingness to prosecute the suit. The reason given for failure to attend court on 2nd December 2014 is not peculiar or improbable; on the contrary, it is eminently possible for an advocate’s court clerk to diarize a case on the wrong date especially in firms handling numerous matters. The explanation is credible.
8. Given the nature of this case, it is in the best interest of justice that it be heard and determined on merit. The application is therefore allowed. The order of dismissal of 2nd December 2014 is hereby set aside and the suit reinstated for hearing. Each party shall bear their own costs.
It is so ordered.
Dated and delivered at Nairobi this 21st Day of May, 2015.
A.MBOGHOLI MSAGHA
JUDGE