[2010] KEHC 3940 (KLR)
The court found that the plaintiff's failure to attend court was occasioned by a genuine mistake on the part of his advocates, who reasonably believed the case had been taken out at the call-over due to procedural ambiguities. The court exercised its discretion under Order IXB, rule 8 of the Civil Procedure Rules to...
Source-derived case information.
- Citation
- [2010] KEHC 3940 (KLR)
- Parties
- Plaintiff: Leonard Ngaithie; Defendant: Wangethi Mwangi; Defendant: Nation Media Group Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 575 of 2006
- Procedural Posture
- Civil Case / Application to Set Aside Dismissal and Reinstate Suit
- Outcome
- Plaintiff's application allowed; dismissal set aside; suit reinstated for hearing; costs awarded to defendants.
- Legal Topics
- Setting Aside Dismissal, Reinstatement of Suit, Non Attendance, Judicial Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Leonard Ngaithie
Plaintiff
Wangethi Mwangi
Defendant
Nation Media Group Limited
Defendant
Procedural Posture
Civil Case / Application to Set Aside Dismissal and Reinstate Suit
Legal Issues
- 1 Whether the court should set aside the dismissal of the suit for non-attendance and reinstate the suit for hearing.
- 2 Whether the plaintiff's failure to attend court was due to a genuine mistake.
Ratio Decidendi
The court found that the plaintiff's failure to attend court was occasioned by a genuine mistake on the part of his advocates, who reasonably believed the case had been taken out at the call-over due to procedural ambiguities. The court exercised its discretion under Order IXB, rule 8 of the Civil Procedure Rules to set aside the dismissal, holding that justice required the plaintiff not be shut out of court for an honest error. The court further held that any inconvenience to the defendants could be adequately compensated by an award of costs, and that no prejudice would be suffered by allowing the suit to proceed to hearing.
Court Disposition
Plaintiff's application allowed; dismissal set aside; suit reinstated for hearing; costs awarded to defendants.
Orders
- The order of 10th July, 2008 dismissing the suit is set aside.
- The suit is reinstated for hearing.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Civil Case 575 of 2006
LEONARD NGAITHE ……………………………………………..PLAINTIFF
V E R S U S
1. WANGETHI MWANGI
2. NATION MEDIA GROUP LIMITED …………………….DEFENDANTS
R U L I N G
On 10th July, 2008 the Plaintiff’s suit herein was dismissed with costs under Order IXB, rule 4(1) of the Civil Procedure Rules (the Rules) for non-attendance.
The Plaintiff has now applied by chamber summons dated 30th June, 2009for an order to set aside the dismissal and to reinstate the suit for hearing. The application is made under Order IXB, rule 8 of the Rules. The Defendants have opposed the application.
I have read the supporting and replying affidavits. I have also considered the submissions of the learned counsels appearing, including the authorities cited.
Rule 8 of Order IXB donates to the court an unfettered discretion, subject only to such terms as are just. I am satisfied from the two supporting affidavits that failure of attendance in court by or for the Plaintiff on 10th July, 2008 was occasioned by a genuine mistake. That mistake was that the Plaintiff’s advocates thought, upon reasonable grounds, that the case had been taken out at the “call-over” for the month of July 2008 upon the ground that there were no lists of documents or a statement of agreed issues on the court record. Also, the symbolism used on the “call-over” list against this particular case was ambiguous.
It is to be noted that it was the Plaintiff’s advocates who had fixed the case for hearing, served hearing notice upon the Defendants’ advocates and also informed the Plaintiff of the hearing date. They stopped the Plaintiff from attending court, and they themselves did not attend court, only because they genuinely thought that the matter was not confirmed at the “call-over” for hearing.
This is a case in which justice demands that the Plaintiff should not be shut out of court. An award of costs will adequately compensate the Defendants for any inconvenience that they may suffer. They will certainly suffer no prejudice by allowing the suit to proceed to hearing.
I will in the circumstances allow the Plaintiff’s application. The order of 10th July, 2008 by which the Plaintiff’s suit was dismissed with costs for want of attendance is hereby set aside, and the suit reinstated for hearing. The Defendants shall have the costs of this application, hereby assessed at KShs. 7,000/00. The same must be paid within 14 days of delivery of this ruling. In default the Defendants may execute for the same. Those shall be the orders of the court.
DATED AT NAIROBI THIS 9TH DAY OF FEBRUARY, 2010
H. P. G. WAWERU
J U D G E
DELIVERED THIS 12TH DAY OF FEBRUARY, 2010