[2012] KEHC 4324 (KLR)
The court found that the failure by the plaintiff's advocate to attend court was not deliberate but was due to inadvertence in the advocate's office. The court held that it would be unjust to visit the mistake of the advocate upon the client. The court further noted that the plaintiff had demonstrated interest in...
Source-derived case information.
- Citation
- [2012] KEHC 4324 (KLR)
- Parties
- Plaintiff: Kassam Khimji Limited; Defendant: Meridian Properties Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 757 of 1994
- Procedural Posture
- Civil Case / Application to Set Aside Ex Parte Dismissal Order
- Outcome
- Application to set aside ex parte dismissal order allowed.
- Legal Topics
- Setting Aside Orders, Dismissal for Want of Prosecution, Mistake of Advocate
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kassam Khimji Limited
Plaintiff
Meridian Properties Limited
Defendant
Procedural Posture
Civil Case / Application to Set Aside Ex Parte Dismissal Order
Legal Issues
- 1 Whether the ex parte order dismissing the suit for want of prosecution should be set aside.
- 2 Whether the failure to attend court by the plaintiff's advocate was deliberate or an inadvertent mistake.
- 3 Whether the mistake of an advocate should be visited upon the client.
Ratio Decidendi
The court found that the failure by the plaintiff's advocate to attend court was not deliberate but was due to inadvertence in the advocate's office. The court held that it would be unjust to visit the mistake of the advocate upon the client. The court further noted that the plaintiff had demonstrated interest in prosecuting the suit and that there was no unreasonable delay. Accordingly, the court exercised its discretion to set aside the dismissal order, finding that justice would be best served by allowing the matter to proceed to hearing, with costs awarded to the respondent.
Court Disposition
Application to set aside ex parte dismissal order allowed.
Orders
- The dismissal order of 13/12/2011 is set aside.
- Costs of the application are granted to the respondent.
Full Case Text
Judgment text and source record
43 paragraphs
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REPUBLIC OF KENYA
IN THE HIGH COURT
AT NAIROBI
MILLIMANI LAW COURTS
Civil Case 757 of 1994
KASSAM KHIMJI LIMITED…………………………………………….. PLAINTIFF
VERSUS
MERIDIAN PROPERTIES LIMITED…………………………………. DEFENDANT
RULING
In the application dated 23/12/2011 the applicant seeks to set aside the exparte order issued by this court on 13/12/2011 dismissing the suit for want of prosecution.
The application is grounded on that the failure to attend court was inadvertent mistake. And there has not been unreasonable delay. The plaintiff has counter claim and substantial issues ought to be given a hearing. It is in the interest of justice that dismissal order be set aside since no prejudice will be occasioned to defendant. The application is supported by affidavit of Mr. Kanjama which shows the respondents served on his firm Notice of Motion schedule for hearing on 13/12/2011. However due to inadvertence in office the date was not placed in his diary.
Failure to attend court on 13/12/2011 was not deliberate but occasioned by an honest mistake.
The plaintiff has been at all times interested with proceeding with the suit. The suit involves shares of high value and a counterclaim by the defendant. The prosecution was delayed while awaiting a Ruling in court of Khaminwa J.N. Suit No.686 of 2008.
Further there was delay due to the application of new Rules of Civil Procedure. The plaintiff/applicant submitted that it is only just that the dismissal be set aside so that the parties can be given opportunities to be heard.
Upon considering the submissions of both parties I have come to conclude that the applicant was not kept from appearing in court deliberately but it was because of inadvertence in his office. The court cannot visit the mistake of advocates upon their clients. It is for advocates to run their offices efficiently to facilitate the clients business.
In the circumstances I find that it is just to set aside the dismissal of this suit. The costs will be granted to the respondent in any case.
Orders accordingly.
Dated and delivered at Nairobi this 9th day of May, 2012.
J.N. KHAMINWA
JUDGE
9/5/2012
9/5/2012
Coram:Khaminwa, J
Anne court clerk
2. 30 p.m.
Mr. Wetangula for respondent
Ruling read in his presence.
J.N. KHAMINWA
JUDGE
Court
Mr. Wetangula I pray that this file be placed in Commercial Division for further hearing.
Court
Order is granted.
Court
The matter shall be mentioned on 24/5/2012.
Notice to be served.
J.N. KHAMINWA
JUDGE