[2004] KEHC 1436 (KLR)
The court found that the plaintiff's absence at the hearing was due to the professional negligence of his former advocate, who failed to attend court because he was engaged in another matter at Machakos High Court. The court held that it would be unjust to penalize the plaintiff for his advocate's carelessness....
Source-derived case information.
- Citation
- [2004] KEHC 1436 (KLR)
- Parties
- Plaintiff: John Kathuri; Defendant: Gedion Mungai Karanja & Another
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 5766 of 1990
- Procedural Posture
- Civil Case / Application to Set Aside Dismissal Order
- Outcome
- Application to set aside dismissal order allowed with costs to the defendant.
- Legal Topics
- Setting Aside Dismissal, Non Attendance, Professional Negligence of Advocate
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
John Kathuri
Plaintiff
Gedion Mungai Karanja & Another
Defendant
Procedural Posture
Civil Case / Application to Set Aside Dismissal Order
Legal Issues
- 1 Whether the court should set aside the dismissal order made for non-attendance by the plaintiff.
- 2 Whether the plaintiff should be penalized for the professional negligence of his former advocate.
Ratio Decidendi
The court found that the plaintiff's absence at the hearing was due to the professional negligence of his former advocate, who failed to attend court because he was engaged in another matter at Machakos High Court. The court held that it would be unjust to penalize the plaintiff for his advocate's carelessness. Exercising its discretion under Order 9B Rule 8 of the Civil Procedure Rules, the court allowed the application to set aside the dismissal order, emphasizing that justice should not be sacrificed due to the mistakes of legal representatives. Costs were awarded to the defendant.
Court Disposition
Application to set aside dismissal order allowed with costs to the defendant.
Orders
- The dismissal order for non-attendance is set aside.
- Costs of the application awarded to the defendant.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
1) Civil practice and procedure
2) Setting aside orders of the court dismissing the suit for non attendance Order 9b r 8 CPR.
3) Advocate for the plaintiff – changed
4) Regularized position of file of various application erroneously filed by former advocates.
5) Held: Application to reinstate suit allowed.
6) Case law – Nil
7) Advocates:
N.M. Kilonzo holding brief advocate for the plaintiff
R.M. Munyasi advocate the defendant.
IN THE HIGH COURT OF KENYA AT NAIROBI CIVILC ASE NO.5766 OF 1990
JOHN KATHURI ………………………………………… PLAINTIFF VERSUS GEDION MUNGAI KARANJA & ANOTHER …….. DEFENDANT
RULING
On the 19. 5.99 when this suit was called out for hearing and the plaintiff being absent was duly dismissed for non-attendance under order 9b r 4 CPR. The plaintiff then advocate was indeed professionally negligent.
a) By chamber summons 1. 12. 00 he prayed to set aside the courts orders. He failed to attend court. The same was dismissed.
b) By chamber summons 9. 8.01 he filed a fresh application again to set the orders aside. This was res judicata and was struck out.
The plaintiff wisely changed advocates.
By an application chamber summons 24. 3.04 the setting aside the dismissal orders was granted by consent.
The parties now come before me for the hearing of the application of 23. 8.00 which is the subject matter of this ruling.
The plaintiff deponed that he blamed his former advocate for failure to attend court. The former advocate had said that the advocates handling this case had gone to Machakos for another High Court suit. That advocate was held up in another court at the said High Court of Machakos and as a result could not attend court.
The plaintiff should not be blamed for the carelessness of his former advocates. They are professionally negligent.
I hereby allow the setting aside of this court orders with costs to the defendant.
Dated this 11th day of June 2004 at Nairobi.
M.A. ANG’AWA
JUDGE
N.M. Kilonzo holding brief for B. Munyasia advocate for the plaintiff
R.M. Munyasi advocate for the defendant