[2009] KECA 178 (KLR)
The court found that the Applicant's counsel's explanation for non attendance—being engaged before another Judge and forgetting about the matter—did not constitute sufficient cause, especially in light of the prolonged delay in prosecuting the application since 1998. The court noted the Applicant's apparent lack of...
Source-derived case information.
- Citation
- [2009] KECA 178 (KLR)
- Parties
- Applicant: Kenya Planters Co-operative Union Limited; Respondent: Joseph Kahiga Kihungi
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Civil Case 2810 of 1996
- Procedural Posture
- Civil Case / Ruling on Application to Set Aside Dismissal Order
- Outcome
- application dismissed with costs to the respondent
- Judges
- JM Khamoni
- Legal Topics
- Setting Aside Ex Parte Orders, Dismissal for Non Attendance, Reinstatement of Applications
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenya Planters Co-operative Union Limited
Applicant
Joseph Kahiga Kihungi
Respondent
Procedural Posture
Civil Case / Ruling on Application to Set Aside Dismissal Order
Legal Issues
- 1 Whether the ex parte order dismissing the Plaintiff's application for non attendance should be set aside.
- 2 Whether the Applicant provided sufficient cause for non attendance on the hearing date.
Ratio Decidendi
The court found that the Applicant's counsel's explanation for non attendance—being engaged before another Judge and forgetting about the matter—did not constitute sufficient cause, especially in light of the prolonged delay in prosecuting the application since 1998. The court noted the Applicant's apparent lack of interest in pursuing the application, as previously observed by Lady Justice Mugo. Consequently, the court declined to set aside the ex parte dismissal order, emphasizing that the Applicant should proceed with the main suit rather than relying on repeated applications as excuses for delay.
Court Disposition
application dismissed with costs to the respondent
Orders
- The Notice of Motion dated 4th July 2006 is dismissed with costs to the Respondent.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL OF KENYA
AT ELDORET
CIVIL CASE 2810 OF 1996
KENYA PLANTERS CO-OPERATIVEUNION LIMITED………………………..…..PLAINTIFF APPLICANT
-versus-
JOSEPH KAHIGA KIHUNGI……………DEFENDANT RESPONDENT
R U L I N G
In the Notice of Motion dated 4th July 2006, the Applicant Plaintiff prays that the exparte order of the court given on 22nd June 2006 dismissing the Plaintiff’s application dated 23rd March 1998 for non attendance be set aside.
The Defendant opposes the application.
The Application was dismissed for non attendance the Applicant’s Counsel having fixed the hearing date and having served the Defendant’s Counsel with a hearing notice. Following that, the Defendant’s Counsel attended Court while the Plaintiff’s Applicant’s Counsel failed to attend court and the court dismissed the application for non attendance.
Now the non attending Counsel is telling this court that he failed to attend court on 22nd June 2006 because he was before another Judge in another case and had forgotten that he also had this case to attend to although it was in his diary.
A good reason and I would have sympathised with him, but I do note that although that application was not dismissed for want of prosecution, the learned Judge, Lady Justice Mugo, also remarked as follows: -
“The court observes that the applicant appears not interested in prosecuting this long outstanding application.”
That was in respect of an application dated 23rd March 1998 not prosecuted up to 22nd June 2006 when it was dismissed for non attendance.
In those circumstances, I would not sympathise with the Applicant. Let him fall back to the main suit he has not been prosecuting using these applications, his applications, as excuses, bad excuses of course.
Accordingly, this Notice of Motion dated 4th July 2006 be and is hereby dismissed with costs to the Respondent.
Dated this 5th day of June 2009.
J. M. KHAMONI
JUDGE