[2010] KEHC 1415 (KLR)
The court found that although the explanation for non-attendance by the 1st defendant's counsel was not convincing, the mistake was attributable to counsel and not the 1st defendant. It would be unjust to punish the 1st defendant for his advocate's error. The court exercised its discretion to set aside the dismissal...
Source-derived case information.
- Citation
- [2010] KEHC 1415 (KLR)
- Parties
- Plaintiff: Mkuki Ranch Ltd; Defendant: Mwaura Bajite; Defendant: Betty Muinde; Defendant: Kuldet Singh; Defendant: First Green Garnet Mining Company of Kenya; Defendant: Mwangi & Company Ltd; Defendant: Tsavorite Mining Company Ltd; Defendant: Kimotho Mining Company Ltd; Defendant: Davis Mining Company Ltd; Defendant: The Commissioner of Mines Geology
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 656 of 2009
- Procedural Posture
- Civil Suit / Ruling on Application to Set Aside Dismissal Order
- Outcome
- application allowed; dismissal order set aside; adjournment granted on terms
- Judges
- GG Okwengu
- Legal Topics
- Setting Aside Orders, Non Attendance, Mistake of Counsel
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mkuki Ranch Ltd
Plaintiff
Mwaura Bajite
Defendant
Betty Muinde
Defendant
Kuldet Singh
Defendant
First Green Garnet Mining Company of Kenya
Defendant
Mwangi & Company Ltd
Defendant
Tsavorite Mining Company Ltd
Defendant
Kimotho Mining Company Ltd
Defendant
Davis Mining Company Ltd
Defendant
The Commissioner of Mines Geology
Defendant
Procedural Posture
Civil Suit / Ruling on Application to Set Aside Dismissal Order
Legal Issues
- 1 Whether the order dismissing the 1st defendant's application for non-attendance should be set aside.
- 2 Whether the mistake of counsel justifies reinstatement of the application.
Ratio Decidendi
The court found that although the explanation for non-attendance by the 1st defendant's counsel was not convincing, the mistake was attributable to counsel and not the 1st defendant. It would be unjust to punish the 1st defendant for his advocate's error. The court exercised its discretion to set aside the dismissal order, substituting it with an order of adjournment, on condition that the 1st defendant pays court adjournment fees and the day's costs to the plaintiff and other defendants. The court emphasized that the respondents could be adequately compensated by costs, and the interests of justice required that the 1st defendant not be prejudiced by his counsel's mistake.
Court Disposition
application allowed; dismissal order set aside; adjournment granted on terms
Orders
- The order of dismissal made on 19th July, 2010 is set aside.
- The matter is adjourned.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Civil Suit 656 of 2009
MKUKI RANCH LTD……………………………………PLAINTIFF
VERSUS
MWAURA BAJITE………………………..……...1st DEFENDANT
BETTY MUINDE…………………………..……..2ND DEFENDANT
KULDET SINGH…………………………......…..3RD DEFENDANT
FIRST GREEN GARNET MINING
COMPANY OF KENYA ..…..............................…4TH DEFENDANT
MWANGI & COMPNAY LTD……………...……..5TH DEFENDANT
TSAVOLITE MINING COMPANY LTD……...…..6TH DEFENDANT
KIMOTHO MINING COMMPANY LTD…….........7TH DEFENDANT
DAVIS MINING COMPANY LTD…………..…….8TH DEFENDANT
THE COMMISSIONER OF MINES GEOLOGY…….9TH DEFENDANT
R U L I N G
1. On the 19th July, 2010, this court dismissed the 1st defendant’s chamber summons dated 4th March, 2010, in which the 1st defendant sought to have the plaintiff’s suit struck out. The application was dismissed due to non-attendance.
2. The 1st defendant has now come to this court seeking to have the order of dismissal set aside. In an affidavit sworn on 19th July, 2010, Antony Oluoch, who is the 1st defendant’s advocate, swears that he was in fact present outside the court, but did not hear when the matter was called out. Counsel pleads with the court to allow the application so that his client is not prejudiced.
3. I have considered the application which was objected to by the plaintiff/respondent. The explanation given by counsel is not very convincing. However, I do note that the mistake was that of counsel and not the 1st defendant. It would not therefore be fair to punish the 1st defendant for the mistake of his counsel. In any case the respondents can be adequately compensated by an award of costs.
4. For the above reasons, I allow the application, set aside the order of dismissal made on 19th July, 2010, and substitute thereof an order of adjournment subject to the 1st defendant paying court adjournment fees and the day’s costs to the plaintiff/respondent and the other defendants.
Dated and delivered this 15th day of October, 2010
H. M. OKWENGU
JUDGE
In the presence of: -
Advocate for the plaintiff absent
Ms Ndumia H/B for Oluoch for the 1st defendant/applicant
Njuguna for the 9th defendant
Kosgei - Court clerk