[2010] KEHC 2058 (KLR)
The court found that the plaintiff was not personally aware of the hearing date due to lack of notification by his former advocate, and that his intended witness was unable to attend court in time. Given that the matter concerns land and in the interest of justice, the court held that the suit should be determined...
Source-derived case information.
- Citation
- [2010] KEHC 2058 (KLR)
- Parties
- Plaintiff: Ibrahim Salim Kiprasu; Defendant: Ignatius Chege Mwangi
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 71’B’ of 2008
- Procedural Posture
- Civil Suit / Application to Set Aside Dismissal for Want of Prosecution
- Outcome
- Plaintiff's application allowed; dismissal order set aside.
- Legal Topics
- Dismissal for Want of Prosecution, Setting Aside Orders, Adjournment of Hearing, Service of Hearing Notice
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Ibrahim Salim Kiprasu
Plaintiff
Ignatius Chege Mwangi
Defendant
Procedural Posture
Civil Suit / Application to Set Aside Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the dismissal of the plaintiff's suit for want of prosecution should be set aside.
- 2 Whether the plaintiff was properly notified of the hearing date.
- 3 Whether the interests of justice require the suit to be heard on its merits.
Ratio Decidendi
The court found that the plaintiff was not personally aware of the hearing date due to lack of notification by his former advocate, and that his intended witness was unable to attend court in time. Given that the matter concerns land and in the interest of justice, the court held that the suit should be determined on its merits. Therefore, the dismissal for want of prosecution was set aside, subject to the plaintiff paying the thrown away costs before the suit is set down for hearing.
Court Disposition
Plaintiff's application allowed; dismissal order set aside.
Orders
- The court's orders made on 28th September, 2009 dismissing the plaintiff's suit for want of prosecution are set aside.
- The plaintiff shall pay the thrown away costs of the suit before the suit can be set down for hearing.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KISII
Civil Suit 71’B’ of 2008
IBRAHIM SALIM KIPRASU...................................................PLAINTIFF
VERSUS
IGNATIUS CHEGE MWANGI............................................DEFENDANT
RULING
The plaintiff’s application dated 24th March, 2010 seeks setting aside of this court’s orders made on 28th September, 2009 when his suit was dismissed for want of prosecution. On that day, the plaintiff’s former advocate, Mr. Ondari, sought an adjournment saying that he had been informed that his client was out of the country. The advocate had been served with a hearing notice on 4th December, 2008. the application was opposed by the defendant’s advocate, Mrs. Asati. The court declined to grant an adjournment.
Mr. Ondari told the court that he had telephoned the plaintiff’s brother and he was going to attend court and testify as a witness. For that reason, the hearing was scheduled to start at noon. Come that time the intended witness was not in court. Mr. Ondari sought to withdraw the suit but the defendant’s advocate urged the court to dismiss the suit for want of prosecution which was done.
In his affidavit in support of the application, the plaintiff stated that he was not aware of the hearing date, having not been so notified by his former advocate. His brother who was telephoned by Mr. Ondari on the material day was at Kichwa Tembo, about 90 kilometres from Kilgoris Town and was unable to get to court in good time. He also tried to call the plaintiff without any success.
Mr. Mokua advocate was granted leave to come on record in place of Mr. Ondari on 24th February, 2010.
This is a land matter and it is in the interest of the parties that the case be determined on its merits. For that reason alone, I set aside this court’s orders made on 28th September, 2009 dismissing the plaintiff’s suit for want of prosecution. The plaintiff shall however pay the thrown away costs of the suit before the suit can be set down for hearing.
DATED, SIGNED AND DELIVERED AT KISII THIS 6TH DAY OF JULY, 2010.
D. MUSINGA
JUDGE.
6/7/2010
Before D. Musinga, J.
Mobisa – cc
Mrs. Asati for the Defendant
Mr. Otieno HB Mr. Mokua for the Plaintiff/Applicant
Court:Ruling delivered in open court on 6th July, 2010.
D. MUSINGA
JUDGE.