[2024] KEHC 5262 (KLR)
The court found that the applicant's failure to attend court was not deliberate but was attributable to technological hitches. Given the protracted nature of the litigation (since 2004), and in the broader interests of justice, the court exercised its discretion to set aside the dismissal orders and reinstate the...
Source-derived case information.
- Citation
- [2024] KEHC 5262 (KLR)
- Parties
- Appellant: John Kahwa Kabucho; Applicant: Johnson Njuguna Gathiongo
- Court
- High Court
- Court Station
- High Court at Nyandarua
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 2B of 2023
- Procedural Posture
- Civil Appeal / Judgment on Application to Reinstate Bill of Taxation After Dismissal
- Outcome
- Application allowed; dismissal orders set aside; bill of taxation reinstated; applicant to bear costs.
- Judges
- CM Kariuki
- Legal Topics
- Reinstatement of Dismissed Matters, Bill of Taxation, Non Attendance, Exercise of Discretion, Costs Awards
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Kahwa Kabucho
Appellant
Johnson Njuguna Gathiongo
Applicant
Procedural Posture
Civil Appeal / Judgment on Application to Reinstate Bill of Taxation After Dismissal
Legal Issues
- 1 Whether the applicant's bill of taxation should be reinstated after dismissal for non-attendance.
- 2 Whether technological hitches constitute sufficient cause for non-attendance leading to dismissal.
- 3 Whether the interests of justice warrant setting aside the dismissal orders.
Ratio Decidendi
The court found that the applicant's failure to attend court was not deliberate but was attributable to technological hitches. Given the protracted nature of the litigation (since 2004), and in the broader interests of justice, the court exercised its discretion to set aside the dismissal orders and reinstate the bill of taxation. However, the court cautioned that such laxity would not be excused in the future and placed an obligation on the applicant to prosecute the bill within 60 days, failing which the dismissal would stand. The applicant was ordered to bear the costs of the application.
Court Disposition
Application allowed; dismissal orders set aside; bill of taxation reinstated; applicant to bear costs.
Orders
- The dismissal orders dated 22nd June 2022 are set aside and the applicant's bill of taxation dated 22nd February 2022 is reinstated.
- The applicant shall prosecute the bill of taxation within 60 days from the date of this ruling, failing which the dismissal orders shall stand.
Full Case Text
Judgment text and source record
25 paragraphs
Kabucho v Gathiongo (Civil Appeal 2B of 2023) [2024] KEHC 5262 (KLR) (Civ) (2 May 2024) (Judgment)
Neutral citation: [2024] KEHC 5262 (KLR)
Republic of Kenya
In the High Court Nyandarua
Civil
Civil Appeal 2B of 2023
CM Kariuki, J
May 2, 2024
Between
John Kahwa Kabucho
Appellant
and
Johnson Njuguna Gathiongo
Applicant
Judgment
1. The Applicant filed a bill of taxation on 15th March 2022 following the judgment delivered in his favour on 1st July 2021. The Respondent’s counsel filed a replying affidavit. The matter came before the deputy registrar on 4/5/2023 and 22/6/2023 without an appearance from the Applicant. Consequently, the bill of taxation was dismissed on 22nd June 2023.
2. The Applicant then filed a Notice of Motion dated 14th August 2023 urging the court to reinstate the bill of taxation and set aside the dismissal orders of 22nd June 2023. In response, the Respondent filed his replying Affidavit dated 11th September 2023. The Applicant then filed his written submissions dated 30th December 2023, and the Respondent filed his submissions on 18th January 2024.
3. The Applicant contended that this was an old matter since 2004, there was no given time for the Applicant to be absent or fail in his duties, and it was only present technology hitches that resulted in the matter being dismissed. Reliance was placed on Rocky Driving School Ltd v Cute Kitchen Ltd [2015] eKLR. They asserted that the litigation started in 2004 to 2023, i.e., 19 years, and it is not fair for the bill of taxation to be dismissed at the last minute. They prayed that the bill of taxation be reinstated as it is a finality of any matter.
4. On the other hand, the Respondent argued that the Applicant, having filed their bill of costs, had to follow up and ensure that the matter was expedited without delay. Reliance was placed on Utalii Transport Company Limited & 3 Others v Nic Bank Limited & Another [2014] eKLR & Ronald Mackenzie v Damaris Kiarie [2021] eKLR
5. The Respondent prayed that the court would find his favor and dismissed the application as it only caused prejudice to the Respondent and further wasted the honorable court’s precious time. They also prayed for costs to be granted to them.
Analysis and Determination 6. I have carefully considered the Applicant’s application and the Respondent’s replying Affidavit. The parties’ written submissions thereto and the main issue for determination is whether the appellant’s bill of taxation should be reinstated.
7. While I appreciate the Respondent’s position that the Applicant having filed their bill of costs, it was their duty to follow up and ensure that the matter is expedited without undue delay, I must point out that I am inclined to excuse the Applicant’s mistake attributed to technological hitches especially because of the length of time that this matter has been in court. I believe it is unreasonable that the Applicant chose to drop the ball at the last minute after such a protracted litigation period.
8. Notwithstanding the aforementioned views, it must be understood that this court will not excuse the laxity in the execution of the Applicant’s mandate again. Once counsel is entrusted with a brief, he must ensure that he represents his client diligently and professionally to the best of his ability.
9. From the foregoing, I find that the failure of the Applicant’s advocate to attend court was not deliberate and can be explained. Further, it is in the broader interests of justice to allow the application and reinstate the Applicant’s bill of taxation. That being the case, I make the following orders:-i.The dismissal orders dated 22nd June 2022 are hereby set aside; and the Applicant’s bill of taxation dated 22nd February 2022 is reinstated.ii.The Applicant shall undertake to prosecute the same within 60 days from the date of this ruling’s failure to which the dismissal orders shall stand.iii.The Applicant shall bear the costs of this application in any event.
DATED, SIGNED, AND DELIVERED AT NYANDARUA ON THIS 2ND DAY OF MAY 2024. .........................C KARIUKIJUDGE