[2007] KEHC 234 (KLR)
The court found that the failure by the advocate to file an appearance and replying affidavit constituted a genuine mistake. While the court is often called upon to rectify such mistakes in the interest of justice, it cautioned against the misuse of the principle that mistakes of advocates should not be visited upon...
Source-derived case information.
- Citation
- [2007] KEHC 234 (KLR)
- Parties
- Applicant: James Masila Mutua; Respondent: John Mutio Mutua; Respondent: Florencendinda Mutua
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 614 of 2006
- Procedural Posture
- Civil Case / Ruling on Application for Stay of Execution and Setting Aside Judgment
- Outcome
- Application granted; judgment and orders set aside; costs to plaintiff respondent.
- Legal Topics
- Setting Aside Judgment, Stay of Execution, Mistake of Advocate, Injunctions, Res Judicata
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Masila Mutua
Applicant
John Mutio Mutua
Respondent
Florencendinda Mutua
Respondent
Procedural Posture
Civil Case / Ruling on Application for Stay of Execution and Setting Aside Judgment
Legal Issues
- 1 Whether the judgment entered in favour of the plaintiff should be set aside due to the advocate's mistake in failing to file appearance and replying affidavit.
- 2 Whether a stay of execution should be granted pending the hearing of the matter.
- 3 Whether the issue of res judicata arises due to other succession matters involving different land references.
Ratio Decidendi
The court found that the failure by the advocate to file an appearance and replying affidavit constituted a genuine mistake. While the court is often called upon to rectify such mistakes in the interest of justice, it cautioned against the misuse of the principle that mistakes of advocates should not be visited upon litigants, warning of potential professional negligence. Nevertheless, considering the circumstances and in the interest of justice, the court exercised its discretion to set aside the judgment and granted the application for stay of execution, allowing the defendants to file their replying affidavit within 14 days. Costs were awarded to the plaintiff respondent.
Court Disposition
Application granted; judgment and orders set aside; costs to plaintiff respondent.
Orders
- The judgment and all consequential orders are set aside.
- The defendants are granted leave to file a replying affidavit within 14 days.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Civil Case 614 of 2006(O.S.)
JAMES MASILA MUTUA…………........……………….………………….APPLICANT
VERSUS
JOHN MUTIO MUTUA………………….………….………………1ST RESPONDENT
FLORENCENDINDA MUTUA……………….…………………..2ND RESPONDENT
RULING
1. Background to Application of 17. 5.2007
1. The Originating Summons in this main suit concerns orders sort for an injunction against the 1st and 2nd Defendants restraining them from sub dividing the suit land. The prayers for fraud was also pleaded and thereby the whole sub-division be declared null and void.
2. On being served with the Originating Summons, the advocate for the 1st defendant entered appearance but did not do so for the 2nd Defendant. The Originating Summons was amended. No reply affidavit was thereafter filed.
3. On the day the matter came for hearing judgment was entered by way of an order in favour of the plaintiff. The plaintiff intended to execute their orders.
II. Application of 17. 5.2007
4. The advocate for defendant 1 and 2 by way of a certificate of urgency filed an application for stay of execution of the judgment. The reasons given is that it was due to a mistake and ERROR on the part of the advocate to fail to file such appearance and replying affidavit. Further there had been no directions taken by the court before the trial was set down for hearing.
5. In relying also on the case law of Willie & v. Muchiki & 2 others (2004) 1KLR 357 the suit may be res judicata on grounds that there are other cases filed in succession matters touching on this matter. That in effect there is substance of this application.
III. In reply
6. The Respondent/plaintiff stated in reply that the land reference are different and therefore the issue of res judicata does not arise. The application does not lie in law.
IV Findings
7. The advocate has made a mistake. This is something the court frowns on very often. The mistakes require to be rectified. The advocate reliance on the famous case law that states mistake should not be visited upon a litigant, seems to be misused. There will be soon a time when advocate may end up with issues of professional negligence.
8. This suit was heard by Aluoch J. She was not available to hear this matter. Under Order 17 r 10 civil procedure rules I have heard it and find that in the interest of justice and noting the ‘genuine’ mistake by the advocate, that this application be granted with costs to the plaintiff respondent.
10. All the said matter and orders made are duly set aside and the replying affidavit be filed within 14 days.
Dated this 22nd day of May, 2007 at Nairobi.
M.A. Ang’awa
JUDGE
24. 5.2007
Advocates:
T.M. Kuria (for T.M. Kuria & Co. Advocates - for the Plaintiff – Present
A. Wandabwa (for Langat & Wandabwa Co. Advocates - for the Defendant – Present