[2004] KEHC 1334 (KLR)
The court found that the plaintiff failed to provide sufficient and credible medical evidence to justify her absence on the hearing date. The medical card produced did not disclose enough information, and the subsequent medical report did not confirm the illness. The court emphasized that the discretion to set aside...
Source-derived case information.
- Citation
- [2004] KEHC 1334 (KLR)
- Parties
- Plaintiff: Lilian Anyango Ochiago; Defendant: Bachus Groers Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 1570 of ??
- Procedural Posture
- Miscellaneous Application / Application to Set Aside Dismissal Order
- Outcome
- application dismissed
- Legal Topics
- Setting Aside Orders, Dismissal for Non Attendance, Medical Evidence, Judicial Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Lilian Anyango Ochiago
Plaintiff
Bachus Groers Limited
Defendant
Procedural Posture
Miscellaneous Application / Application to Set Aside Dismissal Order
Legal Issues
- 1 Whether the order dismissing the suit for non-attendance should be set aside.
- 2 Whether the plaintiff provided sufficient medical evidence to justify her absence.
- 3 Whether the court should exercise its discretion to set aside the dismissal.
Ratio Decidendi
The court found that the plaintiff failed to provide sufficient and credible medical evidence to justify her absence on the hearing date. The medical card produced did not disclose enough information, and the subsequent medical report did not confirm the illness. The court emphasized that the discretion to set aside a dismissal order must be exercised judiciously and only where good cause is shown. In this case, the plaintiff did not meet the threshold for good cause, and therefore the application to set aside the dismissal was dismissed.
Court Disposition
application dismissed
Orders
- The application to set aside the dismissal order is dismissed.
- The defendant is awarded throw away costs of this application.
Full Case Text
Judgment text and source record
18 paragraphs
1) Civil Practice and Procedure
2) Application to set aside orders dismissing suit for non attendance by plaintiff order 9b 8 CPR.
3) Reasons:
Plaintiff was ill with Malaria and did not appear to court.
Proof of medical evidence absent
4) Case law
5) Advocate:
S. Kimondoholding brief for Mariaria Advocate for the plaintiff
R. Raiji Advocate for the defendant
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL CASE NO. 1570 OF 2000
LILIAN ANYANGO OCHIAGO ……………………………. PLAINTIFF VERSUS BACHUS GROERS LIMITED ………………………….. DEFENDANT
RULING
The day the suit was called out for hearing the plaintiff was absent. The advocate through another holding his brief sort adjournment on the grounds that he was unwell. The plaintiff being absent, the suit was dismissed for non attendance. The plaintiff now brings this application to set aside the said case on the grounds she was unwell. This fact was never disclosed to the court at the day of trial. The defendants advocate objects to the application. Though I am aware that the setting aside an order is at the discretion of the court and for good cause shown, I hereby note that the plaintiff stated she was ill in her affidavit. I noted further that the medical report was missing. What was there was the medical card that does not disclose much.
The advocate has since produced in court medical report that do not confirm the said illness. I expected a letter from the doctor describing the illness and stating that the plaintiff was in attendance. I hereby dismiss this application and do award the defendants application throw away costs of this application. Dated this 29th day of July of 2004 at Nairobi.
M.A. ANG’AWA JUDGE
Osoro Mogikoyo & Co. Advocates for the plaintiff Riungu Raiji & Co. Advocates for the defendant