[2015] KEHC 2996 (KLR)
The court found that the applicant was not present when her matter was called out and failed to provide any explanation for her absence or lateness. However, the court noted that the applicant acted promptly by filing the application to set aside the dismissal within two days of learning of the order. Exercising its...
Source-derived case information.
- Citation
- [2015] KEHC 2996 (KLR)
- Parties
- Respondent: John Peter Othieno; Applicant: Anne Olawo Kimaru
- Court
- High Court
- Court Station
- High Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 62 of 2011
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Set Aside Dismissal and Reinstate Application
- Outcome
- application allowed
- Legal Topics
- Setting Aside Orders, Reinstatement of Application, Dismissal for Non Attendance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Peter Othieno
Respondent
Anne Olawo Kimaru
Applicant
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Dismissal and Reinstate Application
Legal Issues
- 1 Whether the orders dismissing the applicant's application should be set aside.
- 2 Whether the applicant's application should be reinstated for hearing.
- 3 Who should bear the costs of the present application.
Ratio Decidendi
The court found that the applicant was not present when her matter was called out and failed to provide any explanation for her absence or lateness. However, the court noted that the applicant acted promptly by filing the application to set aside the dismissal within two days of learning of the order. Exercising its discretion, the court allowed the application, set aside the dismissal order, and reinstated the original application for hearing, but ordered the applicant to bear the costs due to her lateness.
Court Disposition
application allowed
Orders
- The orders of 28th January, 2015 are set aside.
- The application dated 16th January, 2015 is reinstated for hearing on a priority basis.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA.
IN THE HIGH COURT OF KENYA AT BUSIA.
ELC. NO. 62 OF 2014(FORMERLY HCC. NO. 9 OF 2011)
JOHN PETER OTHIENO…………………………………………..PLAINTIFF/RESPONDENT
=VERSUS=
ANNE OLAWO KIMARU……………………………………………DEFEDANT/APPLICANT.
R U L I N G.
ANNE OLAWO KIMARU,hereinafter referred to as the Applicant, filed the Notice of Motion under certificate of urgency dated 30th January, 2015 seeking to have the orders of 28th January, 2015 that dismissed her application dated 16th January, 2015 set aside and the application reinstated for hearing.
The application is opposed by John Othieno, hereinafter referred to as the Respondent, through the replying affidavit sworn by Gabriel Fwaya on 2nd February, 2015.
I have carefully considered the supporting and replying affidavits and submission by Applicant and Respondent’s counsel and find as follows;-
That contrary to the claim by the Applicant that she was in court on 28th January, 2015 and did not hear her file being called out, the truth of the matter is that the Applicant was not present when her matter was called out. She only walked into the court room at the tail end of the day’s session and by then the Respondent’s counsel had left the courtroom.
That the Applicant has not offered any explanation as to why she was not in court when her matter was called out or why she arrived late. She has also not explained what steps she took to have the matter mentioned before the Deputy Registrar upon finding that the dismissal order had been issued.
That notwithstanding the foregoing , the court finds that the Applicant acted without delay on finding her application dated 16th January, 2015 had been dismissed by filing this application within two days.
That for reasons in (3) above, the application dated 30th January, 2015 is allowed in the following terms:
That the orders of 28th January, 2015 are hereby set aside.
That the application dated 16th January, 2015 is hereby reinstated and a date for its hearing be fixed on a priority basis.
That as this application was occasioned by the lateness of the Applicant in coming to court on 28th January, 2015, she will meet the Respondent’s costs of this application.
It is so ordered.
S.M. KIBUNJA,
JUDGE.
DATED AND DELIVERED ON 11th .DAY OF MARCH, 2015.
IN THE PRESENCE OF ;……N/A…………………………..PLAINTIFF/RESPONDENT
…………N/A…………………………DEFENDANT/APPLICANT
…………N/A…………………………ADVOCATE.
JUDGE.