[2012] KEHC 1817 (KLR)
The court exercised its discretion to set aside the dismissal order because the plaintiff had not shown reluctance to prosecute her case, as evidenced by her previous attempts to proceed with the hearing. The absence on the hearing date was not entirely her fault, and the interests of justice, particularly in a land...
Source-derived case information.
- Citation
- [2012] KEHC 1817 (KLR)
- Parties
- Plaintiff: Marinette Siffert; Defendant: Abdalla Ali
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 221 of 2007
- Procedural Posture
- Civil Suit / Application to Set Aside Dismissal Order
- Outcome
- Application allowed; dismissal order set aside; suit reinstated; costs to defendant.
- Judges
- F Tuiyott
- Legal Topics
- Setting Aside Dismissal, Non Attendance, Discretion of Court, Land Ownership Dispute
- Source Language
- english
Source-derived case record
Summary, issues, holding and outcome
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Parties
Marinette Siffert
Plaintiff
Abdalla Ali
Defendant
Procedural Posture
Civil Suit / Application to Set Aside Dismissal Order
Legal Issues
- 1 Whether the order dismissing the plaintiff's suit for non-attendance should be set aside.
- 2 Whether the plaintiff was a reluctant litigant or had shown willingness to prosecute the suit.
- 3 Whether the interests of justice require the suit to be heard on its merits.
Ratio Decidendi
The court exercised its discretion to set aside the dismissal order because the plaintiff had not shown reluctance to prosecute her case, as evidenced by her previous attempts to proceed with the hearing. The absence on the hearing date was not entirely her fault, and the interests of justice, particularly in a land ownership dispute, require that the matter be heard on its merits. The court found that the defendant would not be prejudiced by reinstatement of the suit and awarded costs of the application and the dismissed hearing to the defendant.
Court Disposition
Application allowed; dismissal order set aside; suit reinstated; costs to defendant.
Orders
- The application dated 21st June 2012 is allowed.
- The order of 14th March 2012 dismissing the plaintiff's suit is set aside.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MOMBASA
CIVIL SUIT 221 OF 2007
MARINETTE SIFFERT ………..…...........................................……….……… PLAINTIFF
V E R S U S
ABDALLA ALI ................................................................................................DEFENDANT
RULING
The application before Court requires a short Ruling. It is the application dated 21st June 2012 which seeks the setting aside of the order of this Court of 14th March 2012 dismissing the Plaintiffs suit.
On 14th March 2012 this matter came up for main hearing. (Not for an application as suggested by the Plaintiff’s Counsel). The Hearing Notice dated 7th December 2011 served on them was clear enough, it was for hearing. When called out neither the Plaintiff nor her Counsel were present in Court. The Defence Counsel moved Court to dismiss the said for non-attendance and the Court obliged. From the rival affidavits it seems agreed that earlier on that day Mr. Mogaka for the Plaintiff instructed Mr. Angima to hold his brief. It is also agreed that Mr. Angima discussed the matter with Miss Okumu for the Defendant and subsequently the matter was slotted for 11. 00am to enable Mr. Angima attend to a matter before another Court.
Come 11. 00am and Mr. Angima had not returned. Neither was the Plaintiff present. The Defendant’s Counsel says that Court having gone through its list for the day called out the file whereupon the dismissal happened. It turns out that Mr. Angima did not hold a valid Practicing Certificate and was therefore not even in a position to hold brief for Mr. Mogaka.
I am inclined to allow the application. The dispute involves ownership of land and it is only fair that the matter be settled on merit, after each side has presented its story. My discretion to set aside the dismissal order is informed by the fact that the Court record does not portray the Plaintiff as a reluctant litigant. On 19th March 2009, 16th July 2009, 2nd December 2009 and 5th May 2010 the Plaintiff showed a willingness to proceed with the hearing but for reasons not of her making could not do so. In fact the Defence was not ready on 19th March 2009, 2nd December 2009 and 5th May 2010. This Court will give the Plaintiff an opportunity to have her day in Court.
I allow the application of 21st June 2012 but the Defendant will have costs of that application and for the attendance of 14th March 2012. Costs in any event.
Dated and delivered at Mombasa this 11th day of October, 2012.
F. TUIYOTT
JUDGE
Dated and delivered in open court in the presence of:-
Magiya for Mogaka for the Plaintiff
No appearance for the Defendant
Court clerk - Moriasi
F. TUIYOTT
JUDGE