[2014] KEHC 2255 (KLR)
The court found that the plaintiff had satisfactorily explained the reason for her failure to attend the Notice to Show Cause, namely, her inability to secure funds for advertisement of a substituted process. The court exercised its discretion in favour of the plaintiff, holding that justice would be better served...
Source-derived case information.
- Citation
- [2014] KEHC 2255 (KLR)
- Parties
- Plaintiff: Jedida Ngina Kibunta; Defendant: City Council of Nairobi; Defendant: Abraham Mwangi Njihia; Defendant: The Chief Land Registrar; Defendant: Morris Gitonga Njue; Defendant: Vera Mwasi
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 1877 of 2001
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Reinstatement of Suit
- Outcome
- application allowed; suit reinstated
- Judges
- DO Ogembo
- Legal Topics
- Reinstatement of Suit, Dismissal for Non Attendance, Notice to Show Cause, Exercise of Judicial Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jedida Ngina Kibunta
Plaintiff
City Council of Nairobi
Defendant
Abraham Mwangi Njihia
Defendant
The Chief Land Registrar
Defendant
Morris Gitonga Njue
Defendant
Vera Mwasi
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application for Reinstatement of Suit
Legal Issues
- 1 Whether the plaintiff has provided sufficient cause for the reinstatement of the suit dismissed for non-attendance.
- 2 Whether the court should exercise its discretion to set aside the dismissal order and allow the suit to proceed.
Ratio Decidendi
The court found that the plaintiff had satisfactorily explained the reason for her failure to attend the Notice to Show Cause, namely, her inability to secure funds for advertisement of a substituted process. The court exercised its discretion in favour of the plaintiff, holding that justice would be better served by reinstating the suit and allowing it to proceed to hearing on its merits. The dismissal order was therefore set aside, and the suit reinstated, subject to the plaintiff taking positive action within 30 days.
Court Disposition
application allowed; suit reinstated
Orders
- The order of dismissal of the suit issued on 2nd February 2012 is set aside and the suit is reinstated to proceed to full hearing.
- The plaintiff must take positive action within 30 days from the date of the ruling.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
MILIMANI COMMERCIAL &ADMIRALTY DIVISION
HCC NO. 1877 OF 2001
JEDIDA NGINA KIBUNTA..............................................PLAINTIFF
-Vs-
CITY COUNCIL OF NAIROBI.................................1st DEFENDANT
ABRAHAM MWANGI NJIHIA ................................2nd DEFENDANT
THE CHIEF LAND REGISTRAR................................rd DEFENDANT
MORRIS GITONGA NJUE.......................................4th DEFENDANT
VERA MWASI........................................................5th DEFENDANT
RULING
1. The Plaintiffs suit herein was dismissed on 2nd February 2012 by this court on failing by the parties to attend to a Notice To Show Cause dated 16. 1.2012. The Plaintiff has now on a Notice of Motion application dated 2nd May 2014, the subject of this Ruling, praying for an Order of reinstatement of the suit.
2. The said application was served on all the parties and the Applicant caused an Affidavit of service to be filed in court on 19th May 2014.
3. I have carefully considered the application, the grounds set out for it and the Supporting Affidavit sworn by the Plaintiff on 2nd May 2014.
4. The applicant has explained to my satisfaction the reasons for delay. She was for a long time unable to secure money for advertisement of a substituted process in a newspaper. She has now secured the money and is ready to proceed. In the exercise of my discretion, and so that justice may be seen to be at play, I herewith allow the application and make the following Orders:
i. The Order of dismissal of the suit herein issued on 2nd February 2012 is hereby set aside and the suit is hereby reinstated to proceed to fully hearing.
ii. The Plaintiff must take a positive action within 30 days from the date of the ruling.
iii. The matter will be mentioned on 4th November, 2014 for further directions.
iv. Costs shall be in the cause.
Orders accordingly.
Dated, Read and Delivered at NAIROBI this 26th Day of September 2014.
E.K.O OGOLA
JUDGE
Present:-
M/S Maina for Plaintiff
Absent for Defendant
Teresia – Court clerk