[2012] KEHC 5210 (KLR)
The court found that the dismissal of the suit at 9:55 a.m. was premature because the official cause list indicated that the court would commence at 11:00 a.m. on the material day, not the usual 9:00 a.m. The plaintiff and his counsel arrived at 10:45 a.m., in line with the cause list, only to find the case already...
Source-derived case information.
- Citation
- [2012] KEHC 5210 (KLR)
- Parties
- Plaintiff: Martin Phiri; Defendant: Berkeley Hackett; Defendant: Ezekiel Nandama
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Judgment Date
- 20 January 2012
- Case Number
- Civil Case 927 of 2002
- Procedural Posture
- Civil Case / Ruling on Application to Set Aside Dismissal for Non Attendance
- Outcome
- application allowed; dismissal set aside; suit reinstated
- Judges
- DW Mbuteti
- Legal Topics
- Dismissal for Non Attendance, Setting Aside Orders, Reinstatement of Suit
- Source Language
- english
Source-derived case record
Summary, issues, holding and outcome
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Parties
Martin Phiri
Plaintiff
Berkeley Hackett
Defendant
Ezekiel Nandama
Defendant
Procedural Posture
Civil Case / Ruling on Application to Set Aside Dismissal for Non Attendance
Legal Issues
- 1 Whether the dismissal of the suit for non-attendance should be set aside due to a court scheduling error.
- 2 Whether the suit should be reinstated for hearing.
Ratio Decidendi
The court found that the dismissal of the suit at 9:55 a.m. was premature because the official cause list indicated that the court would commence at 11:00 a.m. on the material day, not the usual 9:00 a.m. The plaintiff and his counsel arrived at 10:45 a.m., in line with the cause list, only to find the case already dismissed. The court acknowledged that the error was due to its own scheduling mistake, not any fault of the plaintiff or his counsel. As such, the court exercised its discretion to set aside the dismissal and reinstate the suit for hearing, holding that justice required rectification of the procedural error.
Court Disposition
application allowed; dismissal set aside; suit reinstated
Orders
- The order of 5th December 2011 dismissing the suit is set aside.
- The suit is reinstated for hearing.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL DIVISION
CIVIL CASE NO. 927 OF 2002
REPUBLIC OF KENYA
IN THE HIGH COURT AT NAIROBI
MILIMANI LAW COURTS
Civil Case 927 of 2002
MARTIN PHIRI .….….….....…….………..…..…….…….. PLAINTIFF
VERSUS
1. BERKELEY HACKETT
2. EZEKIEL NANDAMA……....…............................. DEFENDANTS
R U L I N G
This case came up for hearing on 5th of December 2011. At 9. 55 a.m., I dismissed the case with costs under Order 12, rule 3(1) of the Civil Procedure Rules (the Rules) for non-attendance by the Plaintiff or his advocate.
The Plaintiff has now applied by notice of motion dated 7th December 2011 for an order to set aside the dismissal and reinstate the case for hearing. The application is opposed by the 1st Defendant. The 2nd Defendant is said to have died sometime back, and there has not been any substitution.
I have read the supporting and opposing affidavits. I have also considered the submissions of the learned counsels appearing.
It turns out that my (Waweru, J’s) cause list for 5th December 2011 indicated that I would start hearing my matters at 11. 00 a.m. and not at the usual 9. 00 a.m. This is common ground.
The Plaintiff and his counsel, it has been deponed in the supporting affidavit, did therefore not attend court until 10. 45 a.m., only to find that the case had already been dismissed.
Had this fact (of my court being indicated in the cause list to start at 11. 00 a.m. instead of 9. 00 a.m. that day) been brought to my attention, I would have started court at 11. 00 a.m. as indicated in the cause list, particularly in the case of those matters where all parties were not present. Unfortunately this fact was not brought to my attention, either by my clerk or by any counsel or party present. I did not myself notice this irregularity.
It was thus due to the mistake of the court (in indicating 11. 00 a.m. instead of 9. 00 a.m. as the court’s starting time) that this suit was prematurely dismissed at 9. 55 a.m. on 5th December 2011.
This application must thus be allowed, and it is hereby allowed. The order of 5th December 2011 is hereby set aside and the suit reinstated for hearing.
There will be no order as to costs to the application. It is so ordered.
DATED AT NAIROBI THIS 16TH DAY OF JANUARY 2012
H.P.G. WAWERU
JUDGE
DELIVERED AT NAIROBI THIS 20TH DAY OF JANUARY 2012