[2005] KEHC 270 (KLR)
The court found that the failure to attend court was due to a mistake in the advocate's office and not the plaintiff's fault. The court held that it would be unjust to punish the plaintiff for his advocate's error, particularly as it was the first such incident. The court therefore set aside the dismissal order,...
Source-derived case information.
- Citation
- [2005] KEHC 270 (KLR)
- Parties
- Plaintiff: Jonathan Nzangi Mutunga; Defendant: Anthony Muinde Mutiso
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Civil Case 87 of 2002
- Procedural Posture
- Civil Case / Ruling on Application to Set Aside Dismissal Order
- Outcome
- Application allowed; dismissal order set aside; suit reinstated; costs to defendant payable by plaintiff's advocate personally.
- Judges
- DA Onyancha
- Legal Topics
- Setting Aside Dismissal, Mistake of Advocate, Costs Award, Reinstatement of Suit
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jonathan Nzangi Mutunga
Plaintiff
Anthony Muinde Mutiso
Defendant
Procedural Posture
Civil Case / Ruling on Application to Set Aside Dismissal Order
Legal Issues
- 1 Whether the dismissal order should be set aside due to the advocate's failure to attend court.
- 2 Whether the plaintiff should be penalized for the mistake of his advocate.
- 3 Who should bear the costs occasioned by the adjournment.
Ratio Decidendi
The court found that the failure to attend court was due to a mistake in the advocate's office and not the plaintiff's fault. The court held that it would be unjust to punish the plaintiff for his advocate's error, particularly as it was the first such incident. The court therefore set aside the dismissal order, reinstated the suit, and ordered that the advocate personally pay the defendant's costs assessed at Kshs. 2,000 before the next hearing date. The court emphasized the need to balance justice to both parties by allowing the plaintiff another opportunity to prosecute his case while compensating the defendant for the inconvenience through costs.
Court Disposition
Application allowed; dismissal order set aside; suit reinstated; costs to defendant payable by plaintiff's advocate personally.
Orders
- The orders of 19/1/05 dismissing the case are set aside.
- The suit is reinstated for hearing.
Full Case Text
Judgment text and source record
12 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MACHAKOS Civil Case 87 of 2002
JONATHAN NZANGI MUTUNGA ………………………...…………. PLAINTIFF
VERSUS
ANTHONY MUINDE MUTISO ……..……………………………… DEFENDANT
R U L I N G
This is an application to set aside a dismissal order. The case was fixed for a hearing by Mr Musili’s clerk on behalf of the plaintiff in the presence of the defendant. On the hearing day which was on 19/1/05, Mr Musili, and his client failed to turn up in court and the court dismissed the plaintiff’s case. The reason given for Mr Musili’s failure to turn up in court is that his clerk who had fixed the case for a hearing had failed to inform him of the fixture. As a result, Mr Musili, deponed in a supporting affidavit, he did not know nor attend to prosecute the case. He also argued that even if the court found it was his or his office’s mistake, and being the first time, it should not punish the plaintiff who was innocent.
On the other hand, the defendant saw no reason to excuse the plaintiff or his lawyer. He sought for dismissal of the application.
I have considered the application. Accepting the facts as they are, I am of the view and it is my decision that the mistake lies at the office of Mr Musili, and not his client. I believe that for this occasion the plaintiff should not be punished. He should be given one more chance to prosecute his case. The court is aware that the defendant also suffered in coming to court then but such can be compensated in costs.
For the above reasons, this application is allowed. The orders of 19/1/05 dismissing the case are set aside. Costs are to defendant. Because the mistake is that of the advocate, Mr Musili, shall personally pay the costs assessed at Kshs.2,000/= , payable before the next date. A hearing should be taken without delay. Orders accordingly.
Dated and delivered at Machakos this 16th day of November 2005.
D.A. ONYANCHA
JUDGE