[2008] KEHC 391 (KLR)
The court found that the failure to attend court was due to the mistake of the appellant's counsel, who relied on an incomplete cause list from the Law Report Website and did not make further efforts to confirm the hearing date. While the court was reluctant to punish the party for counsel's mistake, it held that...
Source-derived case information.
- Citation
- [2008] KEHC 391 (KLR)
- Parties
- Appellant: Mohammed Hussein T/A Gondawalla & Sons; Appellant: Alnasir Sayani; Appellant: Shemin Sayani T/A Safari Hardware; Respondent: Mahfudh Jeizan; Respondent: Iqbal Holdings Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 602 of 2006
- Procedural Posture
- Civil Appeal / Ruling on Application to Set Aside Dismissal and Reinstate Application
- Outcome
- Application to set aside dismissal granted; application reinstated; costs to respondent payable personally by appellant's advocate.
- Judges
- GG Okwengu
- Legal Topics
- Setting Aside Orders, Non Attendance, Reinstatement of Application, Costs Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mohammed Hussein T/A Gondawalla & Sons
Appellant
Alnasir Sayani
Appellant
Shemin Sayani T/A Safari Hardware
Appellant
Mahfudh Jeizan
Respondent
Iqbal Holdings Limited
Respondent
Procedural Posture
Civil Appeal / Ruling on Application to Set Aside Dismissal and Reinstate Application
Legal Issues
- 1 Whether the order dismissing the appellant's application for non-attendance should be set aside.
- 2 Whether the application should be reinstated for hearing.
- 3 Who should bear the costs of the application.
Ratio Decidendi
The court found that the failure to attend court was due to the mistake of the appellant's counsel, who relied on an incomplete cause list from the Law Report Website and did not make further efforts to confirm the hearing date. While the court was reluctant to punish the party for counsel's mistake, it held that counsel must bear full responsibility for the error. The court exercised its discretion to set aside the dismissal and reinstate the application, but ordered that the costs of the application be paid personally by the appellant's advocate to the respondent.
Court Disposition
Application to set aside dismissal granted; application reinstated; costs to respondent payable personally by appellant's advocate.
Orders
- The order dismissing the application dated 5.11.07 is set aside.
- The application is reinstated for hearing.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS) Civil Appeal 602 of 2006
MOHAMMED HUSSEIN
T/A GONDAWALLA & SONS….……………1ST APPELLANT
ALNASIR SAYANI
SHEMIN SAYANI
T/A SAFARI HARDWARE….…………….…2ND APPELLANT
VERSUS
MAHFUDH JEIZAN……………...………..1ST RESPONDENT
IQBAL HOLDINGS LIMITED……..…...…2ND RESPONDENT
R U L I N G
The appellant seeks to have the order made on 1st July, 2008, dismissing his application dated 5. 11. 07 set aside and the application reinstated to hearing.
The appellant’s counsel has sworn a supporting affidavit in which he depones that the failure to attend court was due to an inadvertent error on his part, as he relied on the cause list on the Law Report Website according to which the suit was not listed for 1st July, 2008. Counsel therefore did not attend court and only came to learn later that the matter had been dismissed for non-attendance.
The respondent objects to the application maintaining that the hearing date was fixed by consent of both parties and was in fact listed as No.4 on the daily cause list for 1st July, 2008. Counsel for the respondent submitted that the cause list for 1st July 2008 had 23 pages and the counsel for the appellant had not been candid by availing only a few pages. Relying on the case of Mawji vs Lalji & Others (1990-1994) EA 337, counsel submitted that where a party is negligent in conducting his affairs, he should not benefit from the discretion of the court.
I have considered the application and the submissions of both counsels. It is clear that the mistake was that of the appellant’s counsel who took a date for the hearing of the application but failed to attend court. Although counsel explains that the matter was not listed on the Website Cause List, counsel apparently did not make any efforts to find out why the matter was not listed.
I would not wish to punish a party for the mistake of his counsel, however counsel must bear full responsibility for his mistake.
Accordingly, I do grant the application and issue orders as prayed but order that costs of the application shall be paid to the respondent by the appellant’s advocate personally.
Those shall be the orders of this court.
Dated and delivered this 5th day of December, 2008
H. M. OKWENGU
JUDGE
In the presence of: -
Karungu H/B for Mutiso for the appellant
Chege for the respondent