[2004] KEHC 699 (KLR)
The court found that the advocate for the plaintiff made a genuine mistake in believing the matter had not been confirmed for hearing, which constituted good cause for setting aside the dismissal order under order 9b r 4 CPR. However, to balance the interests of justice and discourage negligence, the court ordered...
Source-derived case information.
- Citation
- [2004] KEHC 699 (KLR)
- Parties
- Plaintiff: Joseph Kahuthu & Another; Defendant: Hydra Drilling (K) Ltd & Another
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 144 of 2000
- Procedural Posture
- Civil Case / Ruling on Application to Set Aside Dismissal for Non Attendance
- Outcome
- Application to set aside dismissal order allowed with conditions.
- Legal Topics
- Dismissal for Non Attendance, Setting Aside Orders, Good Cause Requirement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Kahuthu & Another
Plaintiff
Hydra Drilling (K) Ltd & Another
Defendant
Procedural Posture
Civil Case / Ruling on Application to Set Aside Dismissal for Non Attendance
Legal Issues
- 1 Whether the plaintiff has shown good cause to set aside the dismissal order for non-attendance.
- 2 Whether the mistake of the advocate constitutes good cause under order 9b r 4 CPR.
Ratio Decidendi
The court found that the advocate for the plaintiff made a genuine mistake in believing the matter had not been confirmed for hearing, which constituted good cause for setting aside the dismissal order under order 9b r 4 CPR. However, to balance the interests of justice and discourage negligence, the court ordered that throw away costs of Ksh. 5,000 be paid personally by the advocate to the defendant. The suit was reinstated and the plaintiff was directed to fix it for hearing after pretrial issues are addressed.
Court Disposition
Application to set aside dismissal order allowed with conditions.
Orders
- Dismissal order set aside.
- Plaintiff to pay throw away costs of Ksh. 5,000 personally by advocate to the defendant.
Full Case Text
Judgment text and source record
11 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI CIVIL CASE 144 OF 2000
JOSEPH KAHUTHU & ANOTHER ……………………….. PLAINTIFF VERSUS HYDRA DRILLING (K) LTD & ANOTHER …………DEFENDANTRULING
On the day fixed for hearing of this suit both the plaintiff and the advocate for the plaintiff were absent. The defendant not admitting any part of the claim sort for the suit to be dismissed under order 9b r4 CPR. A year later the plaintiff files this current application for setting application for setting aside this courts orders for non-attendance.
The reasons given is that the advocate was under the impression the matter had not been confirmed during the call over. The time that he knew of the dismissal of the suit is when a new date for hearing was being sort. The mistake appears to be entirely his ie that of the advocate for the plaintiff.
The grounds opposing this application were filed out of time and rejected. Under order 9b r 8 CPR an application for setting aside dismissal orders can be set aside but if such dismissal is made under order 9b r 4 CPR there must be “good cause”.
In this case the advocate for the plaintiff started the mistake was his. The good cause being that he made a mistake.
I would accept this explanation but rule that there throw away costs of Ksh.5000/- personally by advocate be awarded to the defendant. The plaintiff is to fix this suit for hearing after pretrial issues are dealt with.
Dated this 7th day of December 2004 at Nairobi.
M.A. ANG’AWA
JUDGE
Nyakundi & Co. Advocates for the plaintiff Shapley Barret & Co. Advocates for the defendant