[2004] KEHC 1096 (KLR)
The court accepted the plaintiff's explanation of a vehicle breakdown as a sufficient reason for non-attendance. Exercising its discretion, the court found it just to set aside the dismissal order and reinstate the suit, subject to the plaintiff paying throw away costs to the defendant. The decision was guided by...
Source-derived case information.
- Citation
- [2004] KEHC 1096 (KLR)
- Parties
- Plaintiff: Kinos The Harie Ndun G’u; Defendant: Michael Mburu Kariuki
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 1038 of 2001
- Procedural Posture
- Civil Application / Application to Set Aside Dismissal for Non Attendance
- Outcome
- Application allowed; suit reinstated.
- Legal Topics
- Setting Aside Dismissal, Non Attendance, Court Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kinos The Harie Ndun G’u
Plaintiff
Michael Mburu Kariuki
Defendant
Procedural Posture
Civil Application / Application to Set Aside Dismissal for Non Attendance
Legal Issues
- 1 Whether the court should set aside the dismissal order for non-attendance.
- 2 Whether the plaintiff's explanation for non-attendance is sufficient to warrant reinstatement of the suit.
Ratio Decidendi
The court accepted the plaintiff's explanation of a vehicle breakdown as a sufficient reason for non-attendance. Exercising its discretion, the court found it just to set aside the dismissal order and reinstate the suit, subject to the plaintiff paying throw away costs to the defendant. The decision was guided by the principle that justice should be served by allowing parties to be heard on merit where plausible explanations for procedural lapses are provided.
Court Disposition
Application allowed; suit reinstated.
Orders
- Suit reinstated for hearing.
- Plaintiff to pay throw away costs of Ksh.5,000 to the defendant.
Full Case Text
Judgment text and source record
12 paragraphs
REPUBLIC OF KENYA
1) Civil Practice & Procedure 2) Application setting aside Dismissal orders for non attendance 3) Reasons:- i) Had a motor vehicle breakdown along Kiambu road 4) Held:- i) Explanation accepted ii) Suit reinstated for hearing 5) Case law Maina v Muriuki CC 1079/80 14th March, 1984 6) Advocates N. Kibatia advocate for the plaintiff S.M. Ambuga advocate for the defendant
IN THE HIGH COURT OF KENYA AT NARIOBI CIVIL CASE NO. 1038 OF 2001
KINOS THE HARIE NDUN G’U …………………….. PLAINTIFF VERSUS MICHAEL MBURU KARIUKI ………………………. DEFENDANTRULING It was on the 9th of July 2002 when this suit was called out and the plaintiff was absent. The defendant was present. The suit was dismissed for non-attendance.
The plaintiff engaged a new advocate who filed this present application. The reason for there being the non-attendance to court by the plaintiff was that he had a break down on the vehicle he and his witness were travelling in. He was not able to attend court due to this. The advocate relied on the case law of:-
Maina v Muriuki (1984) KLR 40 7
In which he emphasized that its the courts discretion to allow the setting aside of a dismissal order. The application was opposed.
I find herein that the explanation of a vehicle break down is duly accepted.
I hereby under the discretion that this suit be reinstated with costs to the defendants at throw away costs of Ksh.5,000/-.
Dated this 24th day of November 2004 at Nairobi.
M.A. ANG’AWA JUDGE
Kibatia & Co. Advocates for the plaintiff Moronge & Co. Advocates for the defendant