[2003] KEHC 626 (KLR)
The court found that the application to set aside the dismissal order lacked merit because the case had been pending since 1990, there had been too many previous adjournments, and the reasons advanced for reopening the case were insufficient. The court had already considered and rejected the justification for...
Source-derived case information.
- Citation
- [2003] KEHC 626 (KLR)
- Parties
- Plaintiff: Ian Alexander Cowie; Defendant: Hugh Richard Cowie; Defendant: Another
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 5459 of 1990
- Procedural Posture
- Civil Case / Ruling on Application to Set Aside Dismissal Order
- Outcome
- application dismissed
- Judges
- RCN Kuloba
- Legal Topics
- Setting Aside Dismissal, Adjournment of Suit, Judicial Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ian Alexander Cowie
Plaintiff
Hugh Richard Cowie
Defendant
Another
Defendant
Procedural Posture
Civil Case / Ruling on Application to Set Aside Dismissal Order
Legal Issues
- 1 Whether the court should set aside the order dismissing the suit issued in March 2001.
- 2 Whether the reasons advanced for reopening the case justify the exercise of judicial discretion in favour of the applicant.
Ratio Decidendi
The court found that the application to set aside the dismissal order lacked merit because the case had been pending since 1990, there had been too many previous adjournments, and the reasons advanced for reopening the case were insufficient. The court had already considered and rejected the justification for adjournment at the time of dismissal, and to grant the application would amount to granting an adjournment retrospectively. The court held that its discretion could not be exercised in favour of the applicant on the facts disclosed.
Court Disposition
application dismissed
Orders
- The application to set aside the dismissal order is dismissed.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
HIGH COURT OF KENYA AT NAIROBI (MILIMANI LAW COURTS)
CIV CASE 5459 OF 90
IAN ALEXANDER COWIE ……………………………. PLAINTIFF
VERSUS
HUGH RICHARD COWIE & ANOTHER ……………. DEFENDANTS
RULING
This application, for setting aside the orders dismissing the suit in March 2001, is not one in which the court, on the facts disclosed, can legitimately exercise its discretion Judicially and grant the prayers therein.
The age of the case – since 1990 – is a factor which goes against granting these orders. It is said by counsel for the respondent that if this case is re-opened, one of the defendants may not be able to come for a trial, because of ill health. This is another factor I consider proper to bear in mind. The reason for allowing the suit to be dismissed is not good.
There might have been a consent letter asking the court to adjourn the suit on 12th March, 2001. That matter was brought to the attention of the court. The court considered it, and found it inadequate to justify an adjournment. It is not right to reagitate the same matter before me again. As I said in my ruling refusing an adjournment there had been too many previous adjournments. To have refused an adjournment at the hearing and then to-day to reopen the matter, is tantamount to granting the adjournment retrospectively.
I find no merit in this application. The application is dismissed.
It is so ordered ex tempore .
R. KULOBA
JUDGE
12. 6.2003