[2004] KEHC 1450 (KLR)
The court found that the defendant was not given an opportunity to be notified of the trial and was not properly represented, as his advocate had left the country and this fact was not brought to the court's attention at the time of trial. As a result, the proceedings were a nullity for failure to afford the...
Source-derived case information.
- Citation
- [2004] KEHC 1450 (KLR)
- Parties
- Plaintiff: Joseph Olang’s Adero; Defendant: Fred Onyango Nyawara
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 166 of 2002
- Procedural Posture
- Running Down Cause / Ruling on Setting Aside Proceedings and Ordering Retrial De Novo
- Outcome
- Proceedings set aside; suit to be heard de novo.
- Legal Topics
- Right to Be Heard, Setting Aside Proceedings, Representation of Parties, Negligence in Road Accidents
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Olang’s Adero
Plaintiff
Fred Onyango Nyawara
Defendant
Procedural Posture
Running Down Cause / Ruling on Setting Aside Proceedings and Ordering Retrial De Novo
Legal Issues
- 1 Whether the proceedings should be set aside due to lack of representation for the defendant.
- 2 Whether the defendant was afforded the right to be heard before the trial proceeded.
Ratio Decidendi
The court found that the defendant was not given an opportunity to be notified of the trial and was not properly represented, as his advocate had left the country and this fact was not brought to the court's attention at the time of trial. As a result, the proceedings were a nullity for failure to afford the defendant the right to be heard and to defend himself. The court set aside the previous proceedings and ordered that the suit start de novo, emphasizing the necessity of resolving representation issues before a trial can proceed.
Court Disposition
Proceedings set aside; suit to be heard de novo.
Orders
- The proceedings before the court are set aside.
- The suit shall start de novo.
Full Case Text
Judgment text and source record
12 paragraphs
REPUBLIC OF KENYA
1) Running Down Cause 2) Civil Practice and Procedure 3) The defendants advocate on being served, process server of court indicated that the advocate was not in the country. 4) Before a trial proceeds for hearing, the issue of representation ought to be sorted out in this case under order 3 r 11 CPR. Where a trial has proceeded, the proceeding is a nullity it did not afford the defendant a right to be defended. 5) Held in ruling the suit to restart de nova 6) Case law – Nil 7) Advocate: Bosire holding brief for A. Otieno advocate for the plaintiff No appearance for advocate for the defendant.
IN THE HIGH COURT OF KENYA AT NAIROBI CIVIL CASE NO. 166 OF 2002 JOSEPH OLANG’S ADERO …………………………………. PLAINTIFF VERSUS FRED ONYANGO NYAWARA ………………………… DEFENDANT RULING The deceased, Alexander George Oguso a minor aged 17 years old in 2001 was alleged to have been run down by a motor vehicle as a pedestrian. The plaint filed on 31. 1.02 also alleged that this was due to the defendants negligence.
On the day the suit was called out for hearing the advocate for the defendants being the owner of the vehicle the defendant himself failed to appear to court. The hearing proceeded under order 9b r 3(a) CPR.
I had not noticed that the advocate for the defendant M/s Kirui and Co. Advocate had infact moved out of Kenya. This was not brought to my attention at the time of trial. It therefore means that the defendants representation was not clear.
I hereby order that the proceeding before this court be set aside. This suit start De nova on the grounds that the defendant was not given an opportunity to be notified of this trial and for this court to deal with the issue of representation.
I further order that all the exhibits be returned to the plaintiff.
Order III r II CPR should be dealt with by the advocate for the plaintiff on the issue of representation together with information to be received from the Law Society.
Costs in the cause.
Dated this 29th day of July 2004 at Nairobi.
M.A. ANG’AWA JUDGE
Atieno Otieno & Co. Advocates for the plaintiff Kirui & Associates advocates for the defendant