[2014] KEHC 2048 (KLR)
The court found that the appellant, after failing to attend court on the date they had taken, attempted to mislead the court by forging a hearing notice to reflect an incorrect date. The court record, including the copy of the hearing notice, clearly indicated the correct hearing date as 4/7/2013. Since the...
Source-derived case information.
- Citation
- [2014] KEHC 2048 (KLR)
- Parties
- Appellant: Lemsoft Consultancy Ltd; Respondent: Kabasa Guest House Ltd
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 100 of 2013
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal dismissed with costs
- Judges
- AO Muchelule, HK Chemitei
- Legal Topics
- Dismissal for Want of Prosecution, Setting Aside Orders, Hearing Notice Service, Judicial Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Lemsoft Consultancy Ltd
Appellant
Kabasa Guest House Ltd
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the trial court erred in refusing to set aside the dismissal order for want of prosecution.
- 2 Whether the appellant was entitled to have the dismissal set aside based on alleged confusion over the hearing date.
- 3 Whether the appellant acted honestly in dealings with the court regarding the hearing notice.
Ratio Decidendi
The court found that the appellant, after failing to attend court on the date they had taken, attempted to mislead the court by forging a hearing notice to reflect an incorrect date. The court record, including the copy of the hearing notice, clearly indicated the correct hearing date as 4/7/2013. Since the appellant was responsible for taking the hearing date and issuing the notice, there was no requirement for them to be served. The court held that a party who is dishonest in their dealings with the court does not deserve the exercise of discretion in their favour. The trial magistrate was correct in refusing to set aside the dismissal order, as there was no good cause shown for the...
Court Disposition
appeal dismissed with costs
Orders
- The appeal is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU
CIVIL APPEAL NO. 100 OF 2013
LEMSOFT CONSULTANCY LTD..............…………......APPELLANT
VERSES
KABASA GUEST HOUSE LTD...........……….............RESPONDENT
Being an appeal from the original ruling of Hon J. Sala, Resident
Magistrate delivered on 17th October 2013 in Kisumu Chief
Magistrate’s Court, Civil Suit No.114 of 2013 in Lemsoft
Consultant Ltd –vs- Kabasa Guest House Ltd
JUDGMENT
1. On 25/3/2013, the appellant filed a plaint seeking Kshs.82,104/40 from the respondent in respect of the work done and services rendered in the month of November, 2011. The respondent filed a defence on 17/4/2013 to deny the claim. On 9/5/2013 the appellant went to the registry and took the 4th July 2013 as the date for the hearing of the suit. There was no invitation to the respondent to take a mutually convenient date. When the day came, the respondent was present but the appellant was not. At the request of the respondent the suit was dismissed for want of prosecution. On 5/9/2013 the appellant filed a motion under Order 12 Rule 7 of the Civil Procedure Rules to have the dismissal order set aside. The reason was that the hearing notice that was issued by the court read 114/7/2013, and not 4/7/2013. They went to court on 11/7/2013 to find out and were surprised when told that the case had been heard on 4/7/2013. The respondent’s case was that, even if there was confusion about the date, the appellant had enough time to go to the registry and check. Otherwise, they were the ones who had taken the date and caused a hearing notice to issue and cannot be heard to be complaining about it. The trial magistrate declined the request to set aside. Hence this appeal.
2. The hearing notice annexed to the affidavit to support the appellant’s application to set aside shows that the hearing notice indicated that the case would be heard on 114/7/2013. The appellant had gone to the registry and given 4/7/2013. That was the date the matter came for hearing. It was the date that was served on the respondent who obediently turned up. I have perused the court record. There is a copy of the hearing notice. It indicated the hearing date as being 4/7/2013. In any case, after the appellant took a hearing date there was no way he required to be served with a hearing notice. He is the one who was causing the hearing notice to be issued and served on the respondent. It is clear, and I agree with the trial court, that the appellant, after failing to come to court on the date he had taken, forged the hearing notice to show 114/7/2013. Otherwise, in the court record, including the copy of the notice, it was clear that the case was to be heard on 4/7/2013.
3. A litigant who is dishonest in his dealings with the court is not deserving of any discretion in his favour. This is the same litigant who had, as it were, ambushed the respondent with a hearing date.
4. I know that under Order 12 Rule 3(1):
“If on the day fixed for hearing, after the suit has been called on for hearing outside the court, only the defendant attends and he admits no part on the claim, the suit shall be dismissed except for good cause to be recorded by the court.”
The court did not find any reason to adjourn the matter, and was therefore under obligation to dismiss it. It is clear that justice is best served when the matter in question is heard and determined on merits. But this assumes that the parties have been reasonably diligent and honest in their dealings.
5. In conclusion, I find no merit in the appeal and dismiss it with costs.
SIGNED at NAIROBI this 6TH AUGUST 2014.
A.O. MUCHELULE
JUDGE
DELIVERED at KISUMU this 25TH SEPTEMBER 2014.
H. CHEMITEI
JUDGE