[2008] KEHC 2398 (KLR)
The court found that the Plaintiff's absence at the hearing leading to the dismissal of its application was occasioned by an inadvertent oversight by the Plaintiff's advocate's court clerk, rather than willful neglect or disregard of the court process. The Plaintiff's subsequent actions demonstrated a genuine belief...
Source-derived case information.
- Citation
- [2008] KEHC 2398 (KLR)
- Parties
- Plaintiff: Mkulima Creameries Limited; Respondent: Brookside Dairy Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 646 of 2004
- Procedural Posture
- Civil Case / Ruling on Application to Set Aside Dismissal and Reinstate Suit
- Outcome
- Plaintiff's application to set aside the dismissal order is allowed; suit reinstated for hearing.
- Legal Topics
- Setting Aside Orders, Reinstatement of Suit, Non Attendance, Inadvertence, Court Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mkulima Creameries Limited
Plaintiff
Brookside Dairy Limited
Respondent
Procedural Posture
Civil Case / Ruling on Application to Set Aside Dismissal and Reinstate Suit
Legal Issues
- 1 Whether the order dismissing the Plaintiff's application for non-attendance should be set aside.
- 2 Whether the Plaintiff's suit should be reinstated for hearing.
- 3 Whether the Defendant will suffer prejudice if the orders sought are granted.
Ratio Decidendi
The court found that the Plaintiff's absence at the hearing leading to the dismissal of its application was occasioned by an inadvertent oversight by the Plaintiff's advocate's court clerk, rather than willful neglect or disregard of the court process. The Plaintiff's subsequent actions demonstrated a genuine belief that the matter was not listed and a consistent effort to prosecute the application. The court exercised its discretion in favour of setting aside the dismissal, holding that the Defendant would not suffer any prejudice if the suit was reinstated, and that justice would best be served by allowing the matter to be heard on its merits.
Court Disposition
Plaintiff's application to set aside the dismissal order is allowed; suit reinstated for hearing.
Orders
- The order made on 7th May 2007 dismissing the Plaintiff's application dated 19th October 2006 is vacated and set aside.
- The Plaintiff's suit is reinstated for hearing.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (MILIMANI COMMERCIAL COURTS)
Civil Case 646 of 2004
MKULIMA CREAMERIES LIMITED..……… ………….PLAINTIFF
VERSUS
BROOKSIDE DAIRY LIMITED………………..…….…RESPONDENT
R U L I N G
The Plaintiff in this sought has approached the court vide a Chamber Summons dated 28th March 2008 brought under Order 1X B rule 8 of the Civil Procedure Rules and Section 3A of the Civil Procedure Rules . It seeks three orders.
(a) That the Order made by this court on 7th May, 2007 dismissing the Plaintiff’s application dated 19th October 2006 be vacated and set aside.
(b) That this court be pleased to hear the said application and the Plaintiff’s suit be reinstated for hearing.
(c) That the costs of this application be awarded to the Defendant.
The application is founded on the following grounds:
1. On 4th May 2007, the court clerk of the Plaintiff’s advocates checked the daily cause list of Monday 7th May 2007 but through oversight, he failed to see the Plaintiff’s application was appearing in the cause list for hearing.
2. The Plaintiff’s Advocate was accordingly misled by his clerk to believe that the matter was not in the cause list and consequently, the application was on 7th May 2007 dismissed for non attendance.
3. Unaware that the application had already been dismissed, the Plaintiff’s Advocate did the following things between May 2007 and 29th February, 2008;
a) On 18th May 2007, he fixed the application for hearing on 20th September 2007;
b) When the court file went missing in September 2007, he spoke to the Executive Officer several times and exchanged letters with the court to request the court’s assistance to trace the missing file;
c) He even prepared an application to reconstruct a new court file on being advised to do so by the court, and
d) When the court file was found, he invited the Defendant’s advocate to the court on 29th February 2008 to fix the plaintiff’s application for hearing.
4. The Plaintiff’s advocate did all the above in the genuine but mistaken belief that the application had been omitted from the cause list of 7th may 2007 through inadvertence.
5. The failure by the Plaintiff’s court clerk to see that the application was in the case list occurred through oversight and inadvertence.
6. The Defendant will not suffer any loss or prejudice if this application is allowed.
There is also a supporting affidavit sworn by the Plaintiff’s Advocate dated 27th March, 2008 with annexures thereto.
The application is opposed.
Dated at Nairobi this 23rd day of May, 2008.
LESIIT, J.
JUDGE
Read, signed and delivered, in the presence of:
Mr. Murage for Applicant
Mr. Kabaiku for Respondent
LESIIT, J.
JUDGE