[2008] KEHC 2336 (KLR)
The court found that the applicant's advocate was late due to a traffic jam, and the application to set aside the dismissal was filed promptly. Given the nature of the dispute—relating to the estate of a deceased person—the court held that the interests of justice would be better served by allowing the application...
Source-derived case information.
- Citation
- [2008] KEHC 2336 (KLR)
- Parties
- Respondent: Charles Kangwana; Applicant: Andrew Atandi Matundura; Applicant: Henry Kisinger Momanyi
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- ? 93 of 2004
- Procedural Posture
- Succession Application / Ruling on Application to Set Aside Dismissal Order
- Outcome
- Application allowed; dismissal order set aside; costs to applicant's advocate.
- Legal Topics
- Setting Aside Dismissal, Non Attendance of Counsel, Estate Administration, Restraining Orders
- Source Language
- english
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Charles Kangwana
Respondent
Andrew Atandi Matundura
Applicant
Henry Kisinger Momanyi
Applicant
Procedural Posture
Succession Application / Ruling on Application to Set Aside Dismissal Order
Legal Issues
- 1 Whether the court should set aside the dismissal order made due to non-attendance of the applicant's counsel.
- 2 Whether sufficient cause was shown for the advocate's absence.
- 3 Whether the interests of justice require reinstatement of the dismissed application.
Ratio Decidendi
The court found that the applicant's advocate was late due to a traffic jam, and the application to set aside the dismissal was filed promptly. Given the nature of the dispute—relating to the estate of a deceased person—the court held that the interests of justice would be better served by allowing the application and permitting the substantive matter to be determined on its merits. The court exercised its discretion to set aside the dismissal order, but directed that the applicant's advocate bear the costs of the application.
Court Disposition
Application allowed; dismissal order set aside; costs to applicant's advocate.
Orders
- The orders made on 18th February 2008 dismissing the application dated 8th October 2007 are set aside.
- The applicant's advocate will bear the costs of the application.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
OF KISII
Succession Case 93 OF 2004
IN THE MATTER OF THE ESTATE OF MOREKA SIMWAGA …………….. DECEASED
AND
CHARLES KANGWANA ……….......................…………... PETITIONER/RESPONDENT
AND
1. ANDREW ATANDI MATUNDURA )
2. HENRY KISINGER MOMANYI ) …… OBJECTORS/APPLICANTS
RULING
The applicant filed an application by way of a chamber summons under Order1XB rule 8 of the Civil Procedure Rules. He sought to have the orders dismissing an application dated 22nd October 2007 set aside. The orders were issued on 18th February 2008 because of non-attendance of counsel for the applicant. In his affidavit in support of the application, the applicant deposed that he was in court on the material day but his advocate, Mr. S. B. Mbeche, was late due to traffic jam at Daraja-Mbili area within Kisii Town. He stated that his advocate arrival in court at around 9. 10 a.m. just after the dismissal order had been made.
The petitioner opposed the said application and in his replying affidavit stated that in the grounds stated on the face of the application, it was indicated that the applicant’s advocate arrived in court at 10 a.m. He further deposed that no good reason had been given to justify the advocate’s absence in court on the material day.
I have considered the rival arguments advanced by the parties herein. This is a dispute relating to the estate of a deceased person. The application that was dismissed is dated 8th October 2007 and not 22nd October 2007. The application sought issuance of some restraining orders against the respondent from trespassing into, cultivating, destroying the boundary or using in any manner parcel of land Known as Wanjare/Bokeire/1481. The applicant’s advocate was late in arriving in court because of traffic jam within Kisii Town. He showed up in court within the morning hours after the court had dealt with the application dated 8th October 2007. He filed the present application on 19th February 2008. There was no delay in so doing. Considering the nature of the dispute herein I am of the view the interests of justice would be better served by allowing the present application so that the substantive application can be determined on its merits.
I therefore set aside the orders made on 18th February 2008 dismissing the application dated 8th October 2007. The applicant’s advocate will bear the costs of the application.
DATED, SIGNED and DELIVEREDat KISII this 6th day of June, 2008.
D. MUSINGA
JUDGE.
Delivered in open court in the presence:
Mr. Nyakundi HB for Mr. Mbeche for the Applicant
Mr. Momanyi for the Respondent
D. MUSINGA
JUDGE