[2012] KEHC 5689 (KLR)
The court found that the applicant provided a sufficient explanation for non-attendance at the hearing that resulted in the dismissal of the suit. However, the court emphasized that the matter, being from 2007, should have been prosecuted with greater diligence. While the court exercised its discretion to reinstate...
Source-derived case information.
- Citation
- [2012] KEHC 5689 (KLR)
- Parties
- Applicant: Josephine Isele Kuluo; Respondent: The Principal Magistrate’s Court, Kibera Nairobi; Respondent: The Attorney General
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 637 of 2007
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Set Aside Dismissal and Reinstate Suit
- Outcome
- Application to set aside dismissal granted; suit reinstated; interim orders not reinstated; applicant to bear costs.
- Judges
- DAS Majanja
- Legal Topics
- Setting Aside Dismissal, Reinstatement of Suit, Non Attendance Explanation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Josephine Isele Kuluo
Applicant
The Principal Magistrate’s Court, Kibera Nairobi
Respondent
The Attorney General
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Dismissal and Reinstate Suit
Legal Issues
- 1 Whether sufficient explanation for non-attendance was provided to justify setting aside the dismissal order.
- 2 Whether the matter should be reinstated despite the delay in prosecution.
- 3 Whether interim orders should be reinstated upon reinstatement of the suit.
Ratio Decidendi
The court found that the applicant provided a sufficient explanation for non-attendance at the hearing that resulted in the dismissal of the suit. However, the court emphasized that the matter, being from 2007, should have been prosecuted with greater diligence. While the court exercised its discretion to reinstate the suit and allow the Notice of Motion to be heard, it declined to reinstate any interim orders previously in force due to the applicant's delay. The applicant was ordered to bear the costs of the application as a consequence of the delay.
Court Disposition
Application to set aside dismissal granted; suit reinstated; interim orders not reinstated; applicant to bear costs.
Orders
- The matter is reinstated and the Notice of Motion dated 22nd June 2007 shall be heard.
- Interim orders previously in force shall not be reinstated.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI COMMERCIAL COURTS
Miscellaneous Civil Application 637 of 2007
JOSEPHINE ISELE KULUO.........................................................................................................................APPLICANT
AND
THE PRINCIPAL MAGISTRATE’S COURT,KIBERA NAIROBI…………………..........................1STRESPONDENT
THE ATTORNEY GENERAL …………………...........................................................................…..2ND RESPONDENT
RULING
I have considered the Notice of Motion dated 7th May 2012. It seeks to set aside the dismissal order made on 22nd June 2007. I am satisfied that there is a sufficient explanation of non-attendance. However, I note that this is a 2007 matter which ought to have been prosecuted earlier with deliberate dispatch.
The order that commends itself to me is that the matter is reinstated and the Notice of Motion dated 22nd June 2007 shall be heard. However, in view of the delay in prosecuting the matter the interim orders in force shall not be reinstated. The ex-parte applicant shall bear the costs.
DATEDand DELIVERED at NAIROBI this 26th day of July 2012.
D.S. MAJANJA
JUDGE
ORDER:-
Notice of Motion dated 22nd June 2007 shall be heard on 19. 9.2012. Parties to exchange written submissions.
D.S. MAJANJA
JUDGE