[2008] KEHC 2634 (KLR)
The court found that the plaintiffs had demonstrated good cause for their absence on the hearing date, as they did not receive the communication to attend court and this was not due to any fault of their own. The court exercised its discretion to set aside the dismissal order, allowing the suit to proceed to full...
Source-derived case information.
- Citation
- [2008] KEHC 2634 (KLR)
- Parties
- Plaintiff: Mercy Wanjiri Igogo & Others; Defendant: Francis Thuku Gakumo & Others
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 1995 of 1998
- Procedural Posture
- Civil Suit / Application to Set Aside Dismissal Order
- Outcome
- Application to set aside dismissal order granted. Suit reinstated.
- Legal Topics
- Setting Aside Dismissal, Non Attendance, Service of Notice, Reinstatement of Suit
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mercy Wanjiri Igogo & Others
Plaintiff
Francis Thuku Gakumo & Others
Defendant
Procedural Posture
Civil Suit / Application to Set Aside Dismissal Order
Legal Issues
- 1 Whether the dismissal of the suit for non-attendance should be set aside.
- 2 Whether the plaintiffs had good cause for failing to attend court.
- 3 Whether lack of communication to the plaintiffs constitutes sufficient reason to reinstate the suit.
Ratio Decidendi
The court found that the plaintiffs had demonstrated good cause for their absence on the hearing date, as they did not receive the communication to attend court and this was not due to any fault of their own. The court exercised its discretion to set aside the dismissal order, allowing the suit to proceed to full trial. The court also ordered that the matter be heard expeditiously and awarded costs of the application to the respondents.
Court Disposition
Application to set aside dismissal order granted. Suit reinstated.
Orders
- The orders of 5.11.07 dismissing the suit are set aside.
- The suit is reinstated and shall proceed to full trial expeditiously.
Full Case Text
Judgment text and source record
38 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Civil Suit 1995 of 1998 (OS)
1. Land and Environmental Law Division
2. Subject of main suit: Land
Original LR Kiambaa/Ruaka/220
Now LR Kiambaa/Ruaka/611
LR Kiambaa/Ruaka/575
LR Kiambaa/Ruaka/576
3. Suit dismissed on 5. 11. 07 for non attendance of plaintiff
4. Application 16. 1.07
Prayer to set aside orders dismissing suit.
Reasons: Plaintiffs had not received letter to attend court.
5. Opposition – no steps taken by plaintiff to finalize case.
6. Held: Application granted. Good cause shown to set aside courts orders.
7. Case Law – Nil
8. Advocate:-
K. Muigai of Kamau Kuria & Kiraitu & Co Advocates for the plaintiffs-present
R.N. Mbugua & Co. Advocates for the 3rd defendant
P.K. Macharia of Macharia Kahonge & Co. Advocates for 1st and 2nd defendant
MERCY WANJIRI IGOGO & OTHERS …………………………............PLAINTIFFS
VERSUS
FRANCIS THUKU GAKUMO & OTHERS ………………………….DEFENDANTS
RULING
I: Application to set aside dismissal of suit orders of the court on 5. 11. 07
1. The application before me seeks prayers to set aside my orders of 5. 11. 07 on the ground that on the day called out for hearing the plaintiffs being absent the suit was dismissed for non-attendance, that the plaintiffs indeed had good cause not to be present.
2. The reasons given was that the plaintiff in fact never received communication to attend court. This was of no fault of theirs.
3. The advocate for respondent oppose this as the matter had taken long and the plaintiffs appear not to be interested.
II: Opinion
4. Where, for good cause the said plaintiffs indeed must show the reasons why she did not attend. She states she did not receive the communication as required from the advocate.
5. I would allow the application as prayed and set my orders of 5. 11. 07 aside. That this suit do proceed to full trials expeditiously with costs to respondents.
Dated this 20th day of February 2008 at Nairobi.
M.A. ANG’AWA
JUDGE
K. Muigai of Kamau Kuria & Kiraitu & Advocates for the plaintiffs-present
R.N. Mbugua & Co. Advocates for the 3rd defendant
P.K. Macharia of Macharia Kahonge & Co. Advocates for 1st and 2nd defendant