[2013] KEHC 2100 (KLR)
The court found that the applicant's reasons for failing to attend the hearing—namely, difficulties with transport from a remote area, illiteracy, and confusion in locating the correct courtroom—were acceptable and excusable. The court emphasized that procedural errors or blunders should not automatically result in...
Source-derived case information.
- Citation
- [2013] KEHC 2100 (KLR)
- Parties
- Applicant: Mkapa Magea; Respondent: Jawa Nyundo
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 157 of 2012
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Reinstatement
- Outcome
- application for reinstatement allowed
- Judges
- MM Kasango
- Legal Topics
- Reinstatement of Application, Extension of Time, Non Attendance, Excusable Mistake
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mkapa Magea
Applicant
Jawa Nyundo
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Reinstatement
Legal Issues
- 1 Whether the applicant has provided sufficient reason for non-attendance at the hearing of his application on 5th August 2013.
- 2 Whether the dismissal of the application for non-attendance should be set aside and the application reinstated.
Ratio Decidendi
The court found that the applicant's reasons for failing to attend the hearing—namely, difficulties with transport from a remote area, illiteracy, and confusion in locating the correct courtroom—were acceptable and excusable. The court emphasized that procedural errors or blunders should not automatically result in a party being denied a hearing on the merits, especially where the delay or non-attendance is not inordinate or intentional. Applying the principle from Chemwolo v Kubende, the court held that the interests of justice required the dismissal order to be set aside and the application reinstated for hearing.
Court Disposition
application for reinstatement allowed
Orders
- The dismissal of the application dated 8th July 2013 is set aside.
- The application dated 8th July 2013 is reinstated for hearing before the Land Division of the High Court at Mombasa.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
MISCELLANEOUS APPLICATION NO. 157 OF 2012
MKAPA MAGEA …………………………………………………. APPLICANT
V E R S U S
JAWA NYUNDO ……………………………………………… RESPONDENT
RULING
Mkapa Magea the Applicant filed an application dated 8th July 2013. In that application he sought the leave of the Court to file an appeal out of time against the Judgment of Kwale Magistrate's Court.
On 5th August 2013 when that application was fixed for hearing interpartes the Applicant who acts in person did not attend. The Respondent who also acts in person prayed that the application be dismissed on the ground of the non attendance of the Applicant. The application was dismissed on that day with Costs to the Respondent.
The Applicant has filed a Notice of Motion dated 6th September 2013 seeking the reinstatement of the application dated 8th July 2013.
The grounds upon which the Applicant seeks reinstatement are stated in his affidavit in support of his application. He deponed as follows-
That the said application came up for hearing on 5th August 2013 but I was not present in this particular Court at times of the hearing.
That I was just some few minutes late due to the distance from where I resides as well as well as the inconvenience in traveling.
That I am coming from the interior villages of Kinango town in Kwale County where transport is very inconvenient.
That I am illiterate and only guided by my two sons who were also not aware of the particular Court taking this matter at that particular time.
That the matter commenced for hearing at exactly 9. 20am while I was already in court five minutes before where it took me other 20 minutes in trying to allocate this particular Court and only to find the application was already dismissed.
That I am not guilty of inordinate delay.
Although the Respondent opposed the application I find that the reasons given by the Applicant for failing to attend Court in time are acceptable to this Court. The failure on the part of the Applicant is excusable as was stated in the case CHEMWOLO -VS- KUBENDE (1982-88)I KAR-
“Blunders will continue to be made from time to time and it does not follow that because a mistake has been made that a party should suffer the penalty of not having his case determined on its merits.”
I therefore hereby set aside the dismissal of the application dated 8th July 2013 which dismissal was on 10th September 2013. The application of 8th July 2013 is reinstated for hearing before the Land Division of this Court. At the reading of this Ruling a mention date shall be given before that Division.
Dated and delivered at Mombasa this 4th day of October, 2013.
MARY KASANGO
JUDGE