[2006] KEHC 2032 (KLR)
The court found that the applicant did not instruct the second advocate who attempted to revive the suit, as evidenced by differing signatures. The court accepted that the applicant was misled by his former advocate and that the mistake should not be visited upon him. The court also noted that the applicant may...
Source-derived case information.
- Citation
- [2006] KEHC 2032 (KLR)
- Parties
- Plaintiff: John Ngari Macharia; Defendant: Francis Kiarie Mbugua
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 432 of 2002
- Procedural Posture
- Civil Case / Ruling on Application to Set Aside Dismissal Order
- Outcome
- Application to set aside dismissal order allowed; suit reinstated.
- Legal Topics
- Setting Aside Orders, Dismissal for Non Attendance, Mistake of Advocate, Res Judicata
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Ngari Macharia
Plaintiff
Francis Kiarie Mbugua
Defendant
Procedural Posture
Civil Case / Ruling on Application to Set Aside Dismissal Order
Legal Issues
- 1 Whether the order dismissing the suit for non-attendance should be set aside.
- 2 Whether the mistake of the advocate should be visited upon the client.
- 3 Whether the application is res judicata.
Ratio Decidendi
The court found that the applicant did not instruct the second advocate who attempted to revive the suit, as evidenced by differing signatures. The court accepted that the applicant was misled by his former advocate and that the mistake should not be visited upon him. The court also noted that the applicant may pursue the issue of forgery separately. Given these circumstances, the court exercised its discretion to set aside the order dismissing the suit, with costs to the 1st and 2nd defendants, but not to the absent third parties.
Court Disposition
Application to set aside dismissal order allowed; suit reinstated.
Orders
- The order dismissing the suit is set aside.
- The suit is reinstated for hearing.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS)
Civil Case 432 of 2002
JOHN NGARI MACHARIA ……….......................................……………PLAINTIFF
VERSUS
FRANCIS KIARIE MBUGUA & ANOTHER ……......................….DEFENDANT
RULING II
1. BACKGROUND
1. This is a running down suit. There was a collision between an Isuzu Bus and a Volvo Trailer motor vehicle. One Francis Muhoro Ngari (now deceased)w as a traveller in the said bus. He suffered fatal injuries.
2. His father sued the 1st and 2nd defendants allegedly the registered owner and driver respectively of the motor vehicle that the deceased was travelling in. The defendants took out 1st and 2nd 3rd party.
3. On the day the suit was called out for hearing on the 5 July 2004, the plaintiff and his advocate were absent. The defendant, the 1st and 2nd 3rd party were present.
4. This court noting that the suit was fixed for hearing for two days adjourned the case to the 6 July 2004.
5. On the 6 July 2004, the defendant, the 1st and 2nd 3rd party were again present fo trial. The plaintiff and his advocate were absent. The court waited until the time of 11. 30 a.m.
6. The defence and 3rd parties then stated that they make no admission to any part of the claim. The suit was duly dismissed under order 9b r 4 Civil Procedure Rules by the court.
7. It should be noted that it was the plaintiffs agent one “Wainaina” of Kinyanjui and Njau advocates who took ex parte dates for hearing.
8. An attempt was made by M/s Judy Thongori & Company advocates to come on record by a chamber summons dated 9. 2.05. At all times the application being defective in substance, namely leave to come on record was to be made in a separate application as the plaintiff was changing his advocates.
9. No action was taken by the plaintiff until 13. 10. 05 when another advocate (now representing him) properly on record (Kihara Kariuki,J).
II APPLICATION
10. An Application dated the 23. 2.06 prayed that the orders be set aside dismissing this suit. The application disclosed that the original plaintiff/applicant had been informed by his then advocate that he need not come to court as the judge dealing with his case was not sitting. He got a shock when he discovered that a bill of costs was forwarded to him to pay upon the dismissal of the said suit. He later discovered that his former advocate tried to revive this same suit through M/s Judy Thongori & Company advocates, a firm that he had never instructed. He prays that the said suit be now reinstated as the fault laid with his former advocate.
11. No affidavit has been deponed by his former advocates is before court.
12. The present advocate for original plaintiff/applicant submitted quite differently on this court from what the affidavit had deponed. What she submitted was contrary to what was recorded.
13. One is bound by their pleadings which I will rely on.
II: OPPOSITION
1. The application is opposed to due to the inordinate delay. I believe this was caused by the application that had been duly struck out. Nonetheless the defendants state that this present application is res judicata. If not the then both former advocates to the applicant should depon the facts as alleged that the plaintiff was misled not to attend court.
III FINDING
This matter came about to this situation when the advocates for the plaintiff failed to attend court together with his client. A mistake of the advocate has been often stated should not be visited upon his client.
16. I would believe the applicant not having instructed the second advocate as the signature on that affidavit differs from that of this current application.
17. The applicant may wish to take up the forgery of his signature with the Law Society and police.
18. I find that I will allow the setting aside of my orders dismissing this suit. I do so with costs to the 1st and 2nd defendants. There will be no costs awarded to the 1st and 2nd third party who are absent.
Dated this 13th day of June 2006 at Nairobi.
M.A. ANG’AWA
JUDGE
Rubua Ngure & Co. Advocates for the plaintiff
Christine Oraro & Co. Advocates for the defendant