[2009] KECA 6 (KLR)
The court exercised its discretion under Section 3A of the Civil Procedure Act to set aside the dismissal order against the 2nd Defendant's application, granting the applicant another opportunity to be heard. The court was persuaded that justice would be better served by allowing the application to be reinstated,...
Source-derived case information.
- Citation
- [2009] KECA 6 (KLR)
- Parties
- Plaintiff: John Bosco Ngeta Maundu; Defendant: William Wambua Kiwia; Defendant: Charles Mutuku; Defendant: Baumanns Ltd; Defendant: The Hon Attorney General
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Case 1165 of 2003
- Procedural Posture
- Civil Case / Ruling on Chamber Summons to Set Aside Dismissal and Reinstate Application
- Outcome
- Application granted; dismissal order set aside; application reinstated; costs to respondent.
- Judges
- JM Khamoni
- Legal Topics
- Setting Aside Orders, Reinstatement of Application, Costs Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Bosco Ngeta Maundu
Plaintiff
William Wambua Kiwia
Defendant
Charles Mutuku
Defendant
Baumanns Ltd
Defendant
The Hon Attorney General
Defendant
Procedural Posture
Civil Case / Ruling on Chamber Summons to Set Aside Dismissal and Reinstate Application
Legal Issues
- 1 Whether the dismissal order against the 2nd Defendant's application dated 10th December 2008 should be set aside and the application reinstated for hearing.
- 2 Whether costs should be awarded and to whom.
Ratio Decidendi
The court exercised its discretion under Section 3A of the Civil Procedure Act to set aside the dismissal order against the 2nd Defendant's application, granting the applicant another opportunity to be heard. The court was persuaded that justice would be better served by allowing the application to be reinstated, provided that the applicant and his counsel avoid further delay or disregard of court orders. As a condition, the applicant was ordered to pay the costs of the Chamber Summons to the respondent, reflecting the court's disapproval of previous conduct but prioritizing the substantive hearing of the matter.
Court Disposition
Application granted; dismissal order set aside; application reinstated; costs to respondent.
Orders
- Chamber Summons granted in terms of prayer number 3: the dismissal order against the 2nd Defendant's application dated 10th December 2008 is set aside and the application is reinstated for hearing.
- The 2nd Defendant (applicant) to pay costs of the Chamber Summons to the Plaintiff (respondent).
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
COURT OF APPEAL AT NAIROBI
CIVIL CASE 1165 OF 2003
JOHN BOSCO NGETA MAUNDU………………………………………..…….PLAINTIFF
Versus
WILLIAM WAMBUA KIWIA…………………………………………...1ST DEFENDANT
CHARLES MUTUKU……………………………………………………….2ND DEFENDANT
BAUMANNS LTD…………………………………………………………..3RD DEFENDANT
THE HON ATTORNEY GENERAL………………….………………….4TH DEFENDANT
RULING
Mr. Mwangi and Mr. Kitulu, learned Counsel conducting the Applicants and the Respondents cases respectively in the Chamber Summons before me dated 29th July 2009 recorded a consent that I do decide the said Chamber Summons on the basis of their relevant filed affidavits.
From what Mr. Mwangi told me, what remains to be decided in the chamber Summons is prayer number 3 and prayer number 5. Prayer number 3 states
“THAT the orders dismissing the 2nd Defendant’s application dated the 10th of December 2008 be set aside and the application reinstated for hearing.”
Prayer number 5 is for costs.
I have had the opportunity to read the said affidavits in the light of what is stated in the Chamber Summons and grounds thereon and bearing in mind the powers of this Court in terms of Section 3 A of the Civil Procedure Act, I am inclined to give further opportunity to the Applicant in the Chamber Summons dated 10th December 2008 hoping he has learned a lesson from the past so that from now on delaying tactics including the conduct of ignoring court orders on his part or his Counsel will be avoided, to lead to finalization of this suit without further delay.
Accordingly, the Chamber Summons is hereby granted in terms of prayer number 3 and the Applicant/2nd Defendant to pay costs of the Chamber Summons to the Respondent/Plaintiff.
Counsel for the 2nd Defendant and Counsel for the Plaintiff jointly or any of them separately to take hearing date for the Chamber Summons dated 10th December 2008 at the Registry on priority basis.
The said hearing be before any other judge in the Civil Division of this court.
Dated this 9th day of October 2009.
J.M. KHAMONI
JUDGE