[2006] KEHC 56 (KLR)
The court found that although the applicant claimed to have been present in court but did not hear his name being called, not everyone has a perfect sense of hearing. Giving the applicant the benefit of the doubt, the court held that the explanation was sufficient to warrant setting aside the dismissal order. The...
Source-derived case information.
- Citation
- [2006] KEHC 56 (KLR)
- Parties
- Plaintiff: Jonyo Ogalo Omiti; Plaintiff: Onyango Omiti; Plaintiff: Okoth Omiti; Plaintiff: Ayako Omiti; Defendant: Fleria Omande w/o Owiti (Deceased); Defendant: Jotham Ouma Omiti; Defendant: Eliakim Ogalo Omiti; Defendant: Ajwang w/o Omiti
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Civil Case 541 of 1993
- Procedural Posture
- Civil Case / Ruling on Application for Reinstatement of Dismissed Application
- Outcome
- Application allowed; dismissal order set aside; application reinstated.
- Judges
- K Bauni
- Legal Topics
- Reinstatement of Application, Dismissal for Non Attendance, Application Hearing, Costs in the Cause
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jonyo Ogalo Omiti
Plaintiff
Onyango Omiti
Plaintiff
Okoth Omiti
Plaintiff
Ayako Omiti
Plaintiff
Fleria Omande w/o Owiti (Deceased)
Defendant
Jotham Ouma Omiti
Defendant
Eliakim Ogalo Omiti
Defendant
Ajwang w/o Omiti
Defendant
Procedural Posture
Civil Case / Ruling on Application for Reinstatement of Dismissed Application
Legal Issues
- 1 Whether the applicant's application dismissed for non-attendance should be reinstated.
- 2 Whether the applicant's explanation for non-attendance is sufficient to set aside the dismissal order.
Ratio Decidendi
The court found that although the applicant claimed to have been present in court but did not hear his name being called, not everyone has a perfect sense of hearing. Giving the applicant the benefit of the doubt, the court held that the explanation was sufficient to warrant setting aside the dismissal order. The court further held that any issues regarding whether the respondent was a party or whether the application was defective could be addressed at the substantive hearing. Accordingly, the dismissal order was set aside and the application reinstated.
Court Disposition
Application allowed; dismissal order set aside; application reinstated.
Orders
- The dismissal order of 1st December 2005 is set aside.
- The applicant's application dated 27th July 2005 is reinstated.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT
AT KISII
CIVIL CASE 541 OF 1993
JONYO OGALO OMITI )
ONYANGO OMITI )
OKOTH OMITI ) ……………………………………. PLAINTIFFS
AYAKO OMITI )
VERSUS
FLERIA OWANDE W/O OWITI (DECEASED) )
JOTHAM OUMA OMITI )
ELIAKIM OGALO OMITI ) ……............…. DEFENDANTS
AJWANG W/O OMITI )
RULING
The applicant seek court to reinstate his application dated
27th July 2005 which was dismissed for non-attendance. He said he was in court but he did not hear his name being called. Later he was told his application had been dismissed.
Mr. Ogutu opposed the application and said respondent was never a party and that the application was defective.
I have considered the application. The main issue is whether to reinstate the application for hearing or not. Applicant stated that he did not hear his name being called. He said he was in court. If he was in Court he should have heard his name being called. I however concede that not everyone is blessed with very good sense of hearing. I will give him benefits of doubts.
As to whether the respondent is a party or if the application is defective that can be canvassed during the proper hearing of the application.
I do note that the respondent was also not present on the day the application was to be heard.
I therefore allow the application; set aside the dismissal order of1st December 2005 and reinstate the applicants application dated27th July 2005. Applicant to take a suitable date for hearing.
Costs of this application in the cause.
Dated 5th October 2006
KABURU BAUNI
JUDGE
cc. Mobisa
Applicant part
Mr. Otieno for Ogutu for Respondent.