[2010] KEHC 674 (KLR)
The court found that although the explanation for non-attendance by the plaintiff's counsel was weak, it was nonetheless a genuine mistake by counsel and not the plaintiff. The court held that the plaintiff should not be penalized for counsel's inadvertence. Furthermore, the application to set aside the dismissal...
Source-derived case information.
- Citation
- [2010] KEHC 674 (KLR)
- Parties
- Plaintiff: Kenya Anti-Corruption Commission; Defendant: Nathaniel Kipkorir Tum & Others
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 169 of 2006
- Procedural Posture
- Civil Suit / Ruling on Application to Set Aside Dismissal and Reinstate Motion
- Outcome
- Application allowed; order of dismissal set aside; application reinstated.
- Judges
- GG Okwengu
- Legal Topics
- Setting Aside Orders, Reinstatement of Suit, Non Attendance by Counsel
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenya Anti-Corruption Commission
Plaintiff
Nathaniel Kipkorir Tum & Others
Defendant
Procedural Posture
Civil Suit / Ruling on Application to Set Aside Dismissal and Reinstate Motion
Legal Issues
- 1 Whether the court should set aside the order dismissing the plaintiff's application for non-attendance.
- 2 Whether the plaintiff should be penalized for the mistake of its counsel.
- 3 Whether there was inordinate delay in seeking reinstatement of the application.
Ratio Decidendi
The court found that although the explanation for non-attendance by the plaintiff's counsel was weak, it was nonetheless a genuine mistake by counsel and not the plaintiff. The court held that the plaintiff should not be penalized for counsel's inadvertence. Furthermore, the application to set aside the dismissal was brought with due speed and diligence. The court also noted that the delay in prosecuting the original application was largely attributable to the court's own delay in delivering its ruling, not the plaintiff. On these grounds, the court exercised its discretion in favour of the plaintiff, set aside the order of dismissal, and reinstated the application for hearing on its merits.
Court Disposition
Application allowed; order of dismissal set aside; application reinstated.
Orders
- Chamber summons dated 18th May, 2010 allowed.
- Order dismissing the plaintiff's notice of motion dated 21st February, 2006 is set aside.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLICOFKENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
LAND AND ENVIRONMENTAL LAW DIVISION
CIVIL SUIT (ELC) NO.169 OF 2006
KENYAANTI-CORRUPTION COMMISSION……….PLAINTIFF
VERSUS
NATHANIEL KIPKORIR TUM & OTHERS……...DEFENDANTS
R U L I N G
1. The Kenya Anti-Corruption Commission, who is the plaintiff in this suit, seeks to have the order made by this court on 17th May, 2010 dismissing the plaintiff’s notice of motion dated 21st February, 2006, set aside and its application dated 21st February, 2006 reinstated and heard on merit.
2. The application dated 21st February, 2006 was dismissed on 17th May, 2010 as there was no attendance on behalf of the applicant. The applicant’s counsel David Ruto has sworn an affidavit in which he explains that his non-attendance was due to inadvertence caused by pressure of work and the fact that the applicant’s executive officer responsible for court matters was away on leave and the matter was not therefore brought to his attention. Counsel explains that he only realized that the matter was in court on the afternoon of 17th May, 2010.
3. The application is strongly opposed by the defendants who maintain that the reason given for failure by the applicant’s counsel, to attend court is flimsy and inexcusable, and that the application is an abuse of the court process as there has been inordinate delay in prosecuting the application dated 21st February, 2006 which is sought to be reinstated.
4. I have given due consideration to the application. I find that the explanation given though weak, confirms that the failure to attend court was that of counsel for which mistake the plaintiff ought not to be penalized. Secondly, the applicant has brought the application for setting aside the order of dismissal with due speed and diligence. Thirdly, the application cannot be held responsible for the delay in prosecuting the application dated 21st February, 2006 as same was caused by two year delay by the court in delivering its ruling.
5. For the above reasons, I find that it is appropriate that this court exercises its discretion in the applicant’s favour. Accordingly, I allow chamber summons dated 18th May, 2010 and issue orders as prayed.
Dated and delivered this 12th day of November, 2010
H. M. OKWENGU
JUDGE
In the presence of: -
Kagucia for the plaintiff/applicant
Advocate for the defendants absent
B. Kosgei - Court clerk