[2005] KEHC 1425 (KLR)
The court found that although there were alterations in the applicant's medical notes, such errors are not uncommon in hospitals where records are kept manually. Granting the applicant the benefit of doubt, the court held that the matter should be decided on its merits, especially given the seriousness of the...
Source-derived case information.
- Citation
- [2005] KEHC 1425 (KLR)
- Parties
- Plaintiff: Jacob Mundia Macharia; Defendant: John Waithaka Kimundu
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 111 of 1995
- Procedural Posture
- Civil Suit / Application to Set Aside Dismissal Order and Reinstate Suit
- Outcome
- Application allowed; dismissal order set aside; suit reinstated for hearing on merit.
- Legal Topics
- Dismissal for Want of Prosecution, Reinstatement of Suit, Non Attendance, Equitable Remedies
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jacob Mundia Macharia
Plaintiff
John Waithaka Kimundu
Defendant
Procedural Posture
Civil Suit / Application to Set Aside Dismissal Order and Reinstate Suit
Legal Issues
- 1 Whether the order dismissing the suit for want of prosecution should be set aside.
- 2 Whether the suit should be reinstated for hearing and determination on merit.
- 3 Whether the applicant's absence was justified by illness.
Ratio Decidendi
The court found that although there were alterations in the applicant's medical notes, such errors are not uncommon in hospitals where records are kept manually. Granting the applicant the benefit of doubt, the court held that the matter should be decided on its merits, especially given the seriousness of the underlying cause of action (a fatal road accident). The court emphasized the importance of allowing all parties a fair opportunity to be heard and concluded that the interests of justice required setting aside the dismissal order and reinstating the suit for hearing.
Court Disposition
Application allowed; dismissal order set aside; suit reinstated for hearing on merit.
Orders
- The order dated 3rd June, 2002 dismissing the suit and all consequential orders is set aside.
- The suit is reinstated for hearing and determination on merit.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAKURU
Civil Suit 111 of 1995
JACOB MUNDIA MACHARIA…………………….…………………..PLAINTIFF
VERSUS
JOHN WAITHAKA KIMUNDU…………………….……………….DEFENDANT
RULING
The Application has been brought through Chamber Summons under Order IXB Rule 8 of the Civil Procedure Rules and Section 3 (A) of the Civil Procedure Act. The application prays for the following:
(1) That the Orders made on 3rd June, 2002 dismissing this Suit for want of prosecution be set aside.
(2) That this Honourable Court be pleased to reinstate this Suit for hearing and determination on merit.
In support of the application, the Applicant has relied on his affidavit in which he states that on the material day, he was indisposed. Besides the above, the Applicant has also disposed that immediately after the disposal of the case, he attended Court. In addition to the above, The Applicant has also deposed that on 31st May, 2002 he had attended Timboroa Health Centre for treatment following attack of pneumonia. Subsequently, the Applicant went for review on 5th June, 2002. In support of the application, Ms Abuga quoted the case of Ngome Vs Plantex Company Ltd – Civil Appeal No. 91 of 1983 in which the Court stated that where a Suit has been dismissed for non-attendance, then it has a duty to hear the Applicant.
On the other hand, Mr. Mwangi has opposed the application on the ground that the same lacks any merit. Besides the above, Mr. Mwangi submitted that the application was filed four months after the dismissal of the Suit. He further urged me not to grant the equitable remedy due to the indolence of the Applicant. Apart from the above, Mr. Mwangi has also pointed out that the treatment card has been altered as an afterthought.
This Court has carefully perused the submissions by both Counsels. Apart from the above, I have also perused the case of Ngome Vs Plantex Company Ltd. KLR [1984]where the Hon. Judges of Appeal quoted Order IXB Rule 8 which states as follows:
“Where judgment has been entered under this Order, the Court on application by summons, may set aside or vary such judgment and any consequential decree or Order upon such terms as are just.”
In addition to the above, the Court has noted the alterations of the date of the Medical notes. However, such mistakes cannot be overruled in hospitals – especially where the operations are conducted manually.
I wish to grant the Applicant the benefit of doubt so that this matter may be decided on its own merits. This Court is alive to the fact that one person died due to the road accident on 2nd February, 1991. It is therefore crucial that the matter be decided conclusively after all the parties have been granted a chance to be heard.
The upshot is that I hereby set aside the Order dated 3rd June, 2002 dismissing the Suit and all other consequential orders. Lastly, I hereby reinstate the Suit for hearing and determination on merit.
Costs to the Respondent in any event.
MUGA APONDI
JUDGE
Ruling read, signed and delivered in open Court in the presence of Mrs. Simiyu for Respondent. Mr. Kimatta for Gekong’a for Applicant.
MUGA APONDI
JUDGE
28TH SEPTEMBER, 2005