[2019] KEHC 4634 (KLR)
The court found that the applicant's advocate had indicated to the court that he was engaged in an election petition on the material date, and that the application was not heard on its merits. The court considered the reasons for non-attendance and, exercising its discretion under Order 12 Rule 7 of the Civil...
Source-derived case information.
- Citation
- [2019] KEHC 4634 (KLR)
- Parties
- Applicant: Jayne Wasike; Respondent: Grace Mokaya
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 64 of 2016
- Procedural Posture
- Civil Appeal / Ruling on Application to Set Aside Dismissal and Reinstate Application
- Outcome
- Application allowed. Order of dismissal set aside. Application reinstated on terms.
- Legal Topics
- Setting Aside Orders, Dismissal for Want of Prosecution, Reinstatement of Application
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jayne Wasike
Applicant
Grace Mokaya
Respondent
Procedural Posture
Civil Appeal / Ruling on Application to Set Aside Dismissal and Reinstate Application
Legal Issues
- 1 Whether the court can set aside the order of dismissal for want of prosecution issued on 4/10/2017.
- 2 Whether the application dated 28th November 2016 can be reinstated.
Ratio Decidendi
The court found that the applicant's advocate had indicated to the court that he was engaged in an election petition on the material date, and that the application was not heard on its merits. The court considered the reasons for non-attendance and, exercising its discretion under Order 12 Rule 7 of the Civil Procedure Rules, allowed the application to set aside the order of dismissal dated 4/10/2017. The court ordered that the application dated 28th November 2016 be reinstated, on condition that the applicant pays the respondent throw away costs of Kshs. 10,000.
Court Disposition
Application allowed. Order of dismissal set aside. Application reinstated on terms.
Orders
- Order of dismissal dated 4/10/2017 is set aside.
- Application dated 28th November 2016 is reinstated.
Full Case Text
Judgment text and source record
34 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT BUNGOMA
CIVIL APPEAL NO. 64 OF 2016
JAYNE WASIKE.........................................................................PLAINTIFF
VERSUS
GRACE MOKAYA..................................................................RESPONDENT
RULING
Case Background:
By way of Notice of Motion dated 28th November 2016 the Applicant filed this application against the Respondent seeking the following prayers:
i. That this Honorable court be pleased to grant leave to the Appellant/Applicant to lodge/file her appeal out of time in relation to WEBUYE PMCC NO.64. OF 2016.
ii. That there be a stay of execution of a decree/orders issued in WEBUYE PMCC NO.64. OF 2016 on the 25th day of October 2016 against the Appellant/Applicant herein pending the hearing and determination of this application.
iii. THAT on the interpartes hearing in paragraph 3 above be confirmed pending the hearing and determination of the appeal.
iv. THAT the cause of the application to abide by the action of the intended appeal.
v. THAT cost of this application be provided for.
However, the above application was dismissed on 4. 10. 2017 for non attendance and want of prosecution and Applicant herein simultaneously filed a Notice of Motion application dated 16. 10. 2017 seeking the following prayers;
i. That this Honourable court be pleased to set aside the order of dismissal for want of prosecution issued on the 4/10/2017 and all other consequential orders.
ii. That the application dated 28th of November 2016 filed herein be re-instated.
iii. That the costs be in the cause.
From the above, the pleadings, the application, the affidavits, I am in a position to decipher the major issues for determination is;
i. The two issues for determination is whether this Honorable court can set aside order of dismissal for want of prosecution issued on the 4/10/2017 and whether application dated 28th November 2016 filed herein can be reinstated.
Setting aside of orders:
The applicant has given reasons why he was unable to attend court on the material date when his application dated 28th November 2016 was dismissed. It is Applicant’s advocate contention that he was engaged in election Petition No.8 and 12 of 2017 when case herein was called for hearing and thereof the application was not heard on merit and urge this court to reinstate his matter.
The Respondent opposed the application and filed replying affidavit dated 8. 12. 2017 sworn by Grace Mokaya opposing the application and briefly stating that the application is inept, unmeritorious, frivolous bad in law hence should be struck out. She stated that the matter was called out on hearing date and advocate holding brief indicated to the court that the application to heard at 11. 00am when advocate on record will be present and the file was set aside.
It is her contention that the advocate did not state to court on material date that that he was engaged in an election petition and reasons adduced by the applicant is not plausible as the same is after thought.
On determination of issues at hand I wish to draw attention of the parties to the relevant applicable law.
Order 12 Rule 7 drawn as follows :-
Setting aside judgment or dismissal [Order 12, rule 7. ]
Where under this Order judgment has been entered or the suit has been dismissed, the court, on application, may set aside or vary the judgment or order upon such terms as may be just.
This court has perused the record of proceedings and noted that the Respondent has been absent from most of the proceedings and even on 4. 10. 2017 material date of hearing of the application that was dismissed advocate did indicate to court he was engaged in an election petition. This court has considered the application dated 16. 10. 2017 and reasons for non-attendance by counsel for the applicant. I allow the application and set aside order of dismissal dated 4. 10. 2017 on terms that the applicant pay the respondent throw away costs of Kshs.10,000/=.
It is so decided.
Dated and Delivered at BUNGOMA this 22ndday of July,2019.
S.N.RIECHI
JUDGE