[2006] KEHC 1506 (KLR)
Despite the 3rd defendant's delay of 21 days in filing the application to set aside the dismissal order, the court found that the circumstances leading to the non-attendance—namely, delay in posting the cause list and security screening at the court entrance—constituted sufficient cause to exercise judicial...
Source-derived case information.
- Citation
- [2006] KEHC 1506 (KLR)
- Parties
- Plaintiff: Lucy Wambui Kinyanjui; Defendant: Nairobi City Council; Defendant: Diana Muthoni; Defendant: __MISSING__
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 1231 of 2003
- Procedural Posture
- Civil Case / Ruling on Application to Set Aside Dismissal Order and Reinstate Motion for Costs
- Outcome
- Application allowed; dismissal order set aside; application for costs reinstated; costs of this application to the respondent.
- Judges
- JL Osiemo
- Legal Topics
- Setting Aside Orders, Reinstatement of Applications, Costs Awards, Consent Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Lucy Wambui Kinyanjui
Plaintiff
Nairobi City Council
Defendant
Diana Muthoni
Defendant
__MISSING__
Defendant
Procedural Posture
Civil Case / Ruling on Application to Set Aside Dismissal Order and Reinstate Motion for Costs
Legal Issues
- 1 Whether the order dismissing the 3rd defendant's application for non-attendance should be set aside.
- 2 Whether the 3rd defendant's application for costs should be reinstated despite delay in filing the application.
Ratio Decidendi
Despite the 3rd defendant's delay of 21 days in filing the application to set aside the dismissal order, the court found that the circumstances leading to the non-attendance—namely, delay in posting the cause list and security screening at the court entrance—constituted sufficient cause to exercise judicial discretion in favour of the applicant. The court acknowledged the lack of diligence but determined that, in the interests of justice, the application should be allowed. Consequently, the dismissal order was set aside and the 3rd defendant's application for costs was reinstated, with costs of the present application awarded to the respondent.
Court Disposition
Application allowed; dismissal order set aside; application for costs reinstated; costs of this application to the respondent.
Orders
- Prayers 1 and 2 of the Notice of Motion dated 25th September 2006 are allowed.
- The order dated 16th September 2005 dismissing the 3rd defendant's Notice of Motion dated 12th July 2005 is set aside.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Civil Case 1231 of 2003
LUCY WAMBUI KINYANJUI………................................................………………………….PLAINTIFF
VERSUS
NAIROBI CITY COUNCIL & 2 OTHERS……….................................................…….….DEFENDANT
RULING
The plaintiff brought this claim against the 3 defendants seeking an injunction to restrain the defendants through themselves, their agents or employees from trespassing and constructing illegal structures on the plaintiff’s parcel of land known as PLOT NO. 174. 30 at Umoja.
On 14th September 2004 counsel for the plaintiff and counsel for the 1st and 2nd defendants filed a consent order in the following terms:
“We the respective counsels for the parties herein would be obliged that this suit be and is hereby settled and or compromised as hereunder:-
(i)That by consent, the plaintiff be and is hereby granted to retain the possession of PLOT NO. A174. 40 Umoja Innercore Sector 1-3
(ii)That the plaintiff do and hereby renounces and or surrenders her interest in and or ownership of PLOT NO. A174-30 Umoja Inner core Sectors 1-3 in favour of Diana Muthoni.
(iii)That each party to bear its own costs of the suit.”
On 12th July 2006 the 3rd defendant filed an application by way of Notice of Motion seeking orders that costs of the suit be paid by the plaintiff to the 3rd defendant.
The application was based on the ground that the 3rd defendant was not party to the consent order and that the consent order did not provide for costs to the 3rd Defendant who had been sued unfairly.
The application was fixed for hearing on 16th August 2005 but was dismissed for none attendance by counsel for the 3rd defendant/applicant. By this Notice of Motion dated 29th September 2005 and filed on 7th October 2005, the 3rd defendant seeks orders to set aside the order dated 16th September 2005 dismissing the 3rd defendant’s Notice of Motion dated 12th July 2005 and that the Notice of Motion dated 12th July 2005 be reinstated.
The application is based on the ground that there was delay in posting the cause list of KLR and upon accessing the cause list, counsel proceeded to court but was held up at the entrance for security screening and arrived to find the application dismissed. The application is opposed on the ground that there was inordinate delay of 21 days bringing this application which is unexplained.
I agree with counsel for the respondent that the applicant did not act diligently to take 21 days to file this application after the dismissal of the application. But that notwithstanding and having looked at the application I am inclined to exercise my discretion in favour of the applicant.
The application is allowed in terms of Prayers 1 and 2 of the Notice of Motion dated 25th September 2006. Costs of this application to the respondent.
Dated and delivered at Nairobi this 26th day of July 2006.
J.L.A. OSIEMO
JUDGE