[2011] KEHC 3752 (KLR)
The court found that the applicant's explanation for non-attendance was satisfactory. The matter was not on the main cause list but on the addendum, which may not have been brought to the notice of counsel in good time. The failure to attend was not deliberate but due to a genuine mix-up. Therefore, sufficient cause...
Source-derived case information.
- Citation
- [2011] KEHC 3752 (KLR)
- Parties
- Appellant: Mary Nekesa Wafula through next of kin Ben Wafula; Respondent: Board of Governors Friends School Kamusinga
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 22 of 2006
- Procedural Posture
- Civil Appeal / Ruling on Application to Set Aside Dismissal and Reinstate Application
- Outcome
- application allowed
- Judges
- FN Muchemi
- Legal Topics
- Setting Aside Orders, Reinstatement of Application, Non Attendance, Sufficient Cause
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mary Nekesa Wafula through next of kin Ben Wafula
Appellant
Board of Governors Friends School Kamusinga
Respondent
Procedural Posture
Civil Appeal / Ruling on Application to Set Aside Dismissal and Reinstate Application
Legal Issues
- 1 Whether the applicant has shown sufficient cause to set aside the dismissal order for non-attendance.
- 2 Whether the application dated 24/05/2010 should be reinstated.
Ratio Decidendi
The court found that the applicant's explanation for non-attendance was satisfactory. The matter was not on the main cause list but on the addendum, which may not have been brought to the notice of counsel in good time. The failure to attend was not deliberate but due to a genuine mix-up. Therefore, sufficient cause was established to set aside the dismissal order and reinstate the application.
Court Disposition
application allowed
Orders
- The application dated 24/05/2010 is reinstated.
- Costs in the cause.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT
AT BUNGOMA
CA NO.22 OF 2006
(Appeal arising from original record of BGM CM CC NO.87 of 1997)
MARY NEKESA WAFULA through next of kinBEN WAFULA...................................APPELLANT
~VRS~
BOARD OF GOVERNORSFRIENDS SCHOOL KAMUSINGA..... ..............................RESPONDENT
RULING
This is a ruling on an application of the Respondent, B.O.G Friends School Kamusinga seeking to set aside orders made on 24/05/2010 and to reinstate the Applicant’s application dated 22/02/2010.
The facts are that the application was dismissed for non attendance of the Plaintiff’s counsel Mr. Khakula. The Applicant has annexed two cause lists for High Court for 24/05/2010 one being the main cause list and the other the other the addendum. The matter was listed in the addendum which the counsel had not seen when he attended court in the morning. The matter was called later after Mr. Khakula had left the court. The failure to prosecute the application was due to a mix-up.
The application was opposed by Mr. Waswa for the Respondent on grounds that the application was listed and there is no sufficient cause to grant the orders sought.
I have considered arguments of both parties in this application. I have also seen the annextures. The matter was not on the main cause list but on the addendum. It is likely that the addendum was not brought to the notice of the counsels by the court clerk in good time. This may have led to Mr. Khakula leaving the court room under the impression that his case was not listed. I find the explanation satisfactory and I am satisfied that the failure by the counsel to attend court was not deliberate.
The application is merited and is hereby allowed as prayed. The application dated 24/05/2010 is hereby reinstated. Costs in the cause.
…………………..
F. N. MUCHEMI
JUDGE
Ruling dated and delivered on the 10th day of March, 2011 in the presence of Mr. khakula Junior for Applicant and Mr. Waswa for Respondent.
…………………
F. N. MUCHEMI
JUDGE