[2021] KEHC 4997 (KLR)
The court found that the applicant had a history of attending court and there was no evidence of delay attributable to them. The explanation of technological challenges during virtual proceedings was accepted as a sufficient and reasonable cause for non-attendance. Recognizing that virtual hearings are a new...
Source-derived case information.
- Citation
- [2021] KEHC 4997 (KLR)
- Parties
- Appellant: Intercessory Deliverance & Counselling Ministry; Respondent: Tack Holdings Limited; Respondent: Nairobi City Council
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 265 of 2020
- Procedural Posture
- Civil Appeal / Ruling on Application to Set Aside Dismissal and Reinstate Application
- Outcome
- application allowed
- Judges
- BT Jaden
- Legal Topics
- Setting Aside Orders, Reinstatement of Application, Virtual Hearings, Non Attendance, Costs in Cause
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Intercessory Deliverance & Counselling Ministry
Appellant
Tack Holdings Limited
Respondent
Nairobi City Council
Respondent
Procedural Posture
Civil Appeal / Ruling on Application to Set Aside Dismissal and Reinstate Application
Legal Issues
- 1 Whether the dismissal of the appellant's application for non-attendance should be set aside.
- 2 Whether the appellant's application should be reinstated and set down for hearing interparties.
- 3 Whether technological challenges constitute sufficient cause for non-attendance in virtual proceedings.
Ratio Decidendi
The court found that the applicant had a history of attending court and there was no evidence of delay attributable to them. The explanation of technological challenges during virtual proceedings was accepted as a sufficient and reasonable cause for non-attendance. Recognizing that virtual hearings are a new phenomenon in the jurisdiction and that technical difficulties are common, the court exercised its discretion to set aside the dismissal order. The application was allowed and the dismissed application reinstated, with costs in the cause.
Court Disposition
application allowed
Orders
- The dismissal order of 28th January, 2021 is set aside.
- The appellant's application dated 18th November, 2020 is reinstated and to be set down for hearing interparties.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CIVIL DIVISION
HIGH COURT CIVIL APPEAL CASE NO. 265 OF 2020
INTERCESSORY DELIVERANCE &
COUNSELLING MINISTRY................................APPELLANT/APPLICANT
VERSUS
TACK HOLDINGS LIMITED ...........................................1ST RESPONDENT
NAIROBI CITY COUNCIL..............................................2ND RESPONDENT
RULING
1. The application dated 29/1/2021 seeks orders that;
a. Spent
b. The orders made by this Honourable court on 28th January, 2021 dismissing the Appellant’s \ application dated 18th November, 2020 be set aside.
c. The Appellant’s application dated 18th November, 2020 and filed on 19th November, 2020 be reinstated and set down for hearing interparties.
d. The cost of the application be in the cause.
2. The application is based on the grounds set out in the application and the affidavit in support. The dismissal of the application for non-attendance is blamed on technical hitches by the Applicant’s Advocate during the online court session. It is further stated that if the orders sought are not granted the Applicant who is the Appellant herein will suffer prejudice as the application that was dismissed sought orders for stay of the Lower Court proceedings pending the hearing and determination of the Appeal.
3. The application is opposed. It is stated in the replying affidavit filed by the 1st Respondent that no list of participants for the court session in question has been printed and exhibited herein by the Applicant to ascertain the truth. It is further averred that the application is devoid of merits and is aimed at causing delay.
4. The 2nd Respondent associated itself with the replying affidavit and the submissions filed by the 1st Respondent.
5. I have considered the Application, the response and the submissions filed.
6. A perusal of the court file reflects that the Applicant had been attending court prior to the date of the dismissal. There is no history of delay caused by the Applicant herein. Technological challenges are teething problems in virtual proceedings as they are a new phenomenon in our jurisdiction. This court therefore accepts the explanation for the non-attendance.
7. I allow the application with costs in cause.
DATED, SIGNED AND DELIVERED AT NAIROBI THIS 15TH DAY OF JULY, 2021
B.THURANIRA JADEN
JUDGE