[2008] KEHC 1649 (KLR)
The court found that the explanation for the advocate's non-attendance was credible and not deliberate. The plaintiff was present in court and attempted to explain the advocate's absence. The court emphasized its duty to hear disputes on their merits and not to shut out parties except in exceptional circumstances....
Source-derived case information.
- Citation
- [2008] KEHC 1649 (KLR)
- Parties
- Plaintiff: Ishmael Kagunyi Thande; Defendant: Housing Finance Co. Ltd.
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 166 of 2008
- Procedural Posture
- Civil Case / Ruling on Application to Set Aside Dismissal and Reinstate Application
- Outcome
- Application allowed; dismissal order set aside; application reinstated.
- Legal Topics
- Setting Aside Orders, Reinstatement of Application, Non Attendance Explanation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ishmael Kagunyi Thande
Plaintiff
Housing Finance Co. Ltd.
Defendant
Procedural Posture
Civil Case / Ruling on Application to Set Aside Dismissal and Reinstate Application
Legal Issues
- 1 Whether the court should set aside the dismissal order made due to non-attendance of the plaintiff's advocate.
- 2 Whether sufficient explanation for non-attendance was provided to warrant reinstatement of the application.
Ratio Decidendi
The court found that the explanation for the advocate's non-attendance was credible and not deliberate. The plaintiff was present in court and attempted to explain the advocate's absence. The court emphasized its duty to hear disputes on their merits and not to shut out parties except in exceptional circumstances. Exercising its discretion, the court set aside the dismissal order and reinstated the plaintiff's application, together with interim orders, with costs in the cause.
Court Disposition
Application allowed; dismissal order set aside; application reinstated.
Orders
- The order of dismissal of the application is set aside.
- The application dated 13/5/08 is reinstated together with interim orders.
Full Case Text
Judgment text and source record
13 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (MILIMANI COMMERCIAL COURTS) Civil Case 166 of 2008
ISHMAEL KAGUNYI THANDE …………………………. PLAINTIFF
VERSUS
HOUSING FINANCE CO. LTD. ………………………… DEFENDANT
R U L I N G
Notice of motion dated 26/5/08 seeks order to set aside the order made on same day that the plaintiff’s amended chamber summons application dated 13/5/08 be re-instated. The grounds relied upon are set out in the application and in the affidavit of Patrick Kahonge advocate who explains why he failed to reach the court in time on 26/5/2008. It is shown that the advocate had 2 cases in Milimani Commercial Courts, on that day arrived in the building of court at 8. 55 a.m. He met N. Mungai one of the advocates, on the opposite side.
He also mentions having met Mr. Chacha Odera, Advocate. By the time he reached the court of the Hon. Justice Warsame, at around 9. 29 a.m. he found that his application had already been dismissed. The plaintiff himself swears that he was in the court of Hon. Judge when his case was called and he tried to address the Judge informing him that his advocate is on the way. However this was not accepted by the Judge.
The duty of the court is to hear disputes between the parties except in the exceptional cases. In this case the reason for non-attendance is explained and it was not deliberate.
I accept the explanation given and in exercise of my discretion I allow the application. The orders made of dismissal of application are hereby set aside. The application dated 13/5/08 is hereby re-instated together with interim orders.
Costs in the cause.
DATEDand DELIVEREDat Nairobi this 23rd day of September 2008.
JOYCE N. KHAMINWA
JUDGE