[2008] KEHC 2316 (KLR)
The court found that the applicant had provided sufficient reason for her non-attendance, namely her ill health and hospital detention on the material day, as evidenced by annexed treatment notes. The court held that this constituted sufficient cause to invoke its discretion to set aside the dismissal of the...
Source-derived case information.
- Citation
- [2008] KEHC 2316 (KLR)
- Parties
- Appellant: Mary Wangui Ndura; Appellant: Joseph Wakaritu Ndura; Respondent: Dominica Wamuyu Kihu
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 1 of 2000
- Procedural Posture
- Civil Appeal / Ruling on Application to Set Aside Dismissal of Stay Application
- Outcome
- Application to set aside dismissal granted; dismissal and consequential orders set aside; respondent awarded costs of the application.
- Judges
- MM Kasango
- Legal Topics
- Setting Aside Orders, Non Attendance, Judicial Discretion, Revival of Application
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mary Wangui Ndura
Appellant
Joseph Wakaritu Ndura
Appellant
Dominica Wamuyu Kihu
Respondent
Procedural Posture
Civil Appeal / Ruling on Application to Set Aside Dismissal of Stay Application
Legal Issues
- 1 Whether the applicant has provided sufficient reason for non-attendance leading to dismissal of her application.
- 2 Whether the court should exercise its discretion to set aside the dismissal and revive the application.
Ratio Decidendi
The court found that the applicant had provided sufficient reason for her non-attendance, namely her ill health and hospital detention on the material day, as evidenced by annexed treatment notes. The court held that this constituted sufficient cause to invoke its discretion to set aside the dismissal of the application and any consequential orders. The court emphasized the need for judicial discretion to be exercised judiciously and found that the circumstances justified reviving the dismissed application.
Court Disposition
Application to set aside dismissal granted; dismissal and consequential orders set aside; respondent awarded costs of the application.
Orders
- The dismissal of the applicant’s application dated 14th November 2007 made on 4th March 2008 is set aside.
- All consequential orders of 4th March 2008 are set aside.
Full Case Text
Judgment text and source record
13 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NYERI
Civil Appeal 1 of 2000
MARY WANGUI NDURA
JOSEPH WAKARITU NDURA ………………. APPELLANTS
Versus
DOMINICA WAMUYU KIHU…….…………… RESPONDENT
RULING
The applicant DOMINICA WAMUYU KIHU made an application seeking to stay the decree of this court by a Notice of Motion dated 14th November 2007. The applicant fixed that application for hearing on 4th March 2008. When the matter was called out the applicant was absent and the respondent prayed for and obtained the dismissal of that application for non attendance. The applicant has now come before court by way of Notice of Motion dated 10th March 2008 seeking the revival of the dismissed application. In that application the applicant deponed that she has suffered with ill health and on the day the application was dismissed she had attended hospital for routine examination but because of her ill health she was detained in hospital. She therefore sought the court to set aside the dismissal. The application was opposed and in opposing the application the respondent submitted that the applicant should not have taken a date for hearing when she was due to go for medical examination. The respondent argued that failure to attend court was either deliberate or inadvertent. I have considered the application and the opposition by the respondent. A court should exercise its discretion judiciously. The applicant in alleging that she suffers from ill health annexed treatment notes which showed that on the day her application was dismissed she was attending hospital. That I believe is sufficient reason for failing to attend court. I find that is also sufficient reason to invoke this courts exercise of its discretion. Accordingly the order of the court is that the dismissal of the applicant’s application dated 14th November 2007 made on 4th March 2008 is hereby set aside. The court also sets aside the consequential orders of that date. The respondent is granted costs of the Notice of Motion dated 10th March 2008.
DATED AND DELIVERED THIS 25TH DAY OF JUNE 2008
MARY KASANGO
JUDGE