[2010] KEHC 43 (KLR)
The court found that the respondent's failure to attend the hearing was due to the inadvertence of her counsel, specifically the failure to diarise the hearing date. The court held that this mistake was not deliberate and did not raise any issues that would preclude the exercise of its discretion in favour of the...
Source-derived case information.
- Citation
- [2010] KEHC 43 (KLR)
- Parties
- Appellant: Muchiri Muigai; Respondent: Milka Njeri
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 172 of 2000
- Procedural Posture
- Civil Appeal / Application to Set Aside Dismissal Order and Reinstate Application
- Outcome
- Application allowed; dismissal order set aside; application reinstated; costs to appellant.
- Judges
- LK Kimaru
- Legal Topics
- Reinstatement of Application, Setting Aside Dismissal, Inadvertence of Counsel, Exercise of Discretion, Transfer of Land, Costs Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Muchiri Muigai
Appellant
Milka Njeri
Respondent
Procedural Posture
Civil Appeal / Application to Set Aside Dismissal Order and Reinstate Application
Legal Issues
- 1 Whether the court should set aside the dismissal order made on 9th June 2010 for want of prosecution.
- 2 Whether the respondent's counsel's inadvertence constitutes sufficient cause for reinstatement of the application.
- 3 Whether the respondent's counsel is properly on record to prosecute the application.
Ratio Decidendi
The court found that the respondent's failure to attend the hearing was due to the inadvertence of her counsel, specifically the failure to diarise the hearing date. The court held that this mistake was not deliberate and did not raise any issues that would preclude the exercise of its discretion in favour of the respondent. The court emphasized the principle that cases should be determined on their merits rather than on procedural technicalities. The court was satisfied that the respondent's counsel was properly on record and that the appellant could be adequately compensated by an award of costs. Consequently, the court exercised its discretion to set aside the dismissal order and...
Court Disposition
Application allowed; dismissal order set aside; application reinstated; costs to appellant.
Orders
- The order of this court made on 9th June 2010 dismissing the respondent’s application dated 14th August 2006 is set aside.
- The respondent’s application dated 14th August 2006 is reinstated to hearing.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CIVIL APPEAL NO.172 OF 2000
MUCHIRI MUIGAI.................…..………….………………...................................….......................... APPELLANT
VERSUS
MILKA NJERI................................................……………..……….…………………………………. RESPONDENT
R U L I N G
On 14th August 2006, the respondent filed an application seeking orders from this court to enforce the judgment that had been rendered in her favour in respect of the parcel of land known as LR.No.Kiganjo/Handege/1021 (the suit land). In particular, the respondent sought an order of the court to the effect that the Deputy Registrar of this court do execute all the transfer forms in relation to the suit land to enable the same to be transferred to the respondent. The application was supported by the affidavit of the respondent. The application was opposed. A replying affidavit opposing the application was duly filed. The application was listed for hearing on 9th June 2010. On that day, the respondent did not attend court. The advocate of the appellant urged the court to dismiss the application for want of prosecution. This court duly obliged. It dismissed the said application with costs for want of prosecution.
On 9th September 2010, the respondent filed an application pursuant to the provisions of Rules 49 & 73 of the Probate and Administration Rules craving for orders from this court to set aside the order of dismissal of the application dated 14th August 2006 that was made on 9th June 2010. The respondent further prayed that the said application be reinstated to hearing. The grounds in support of the application are stated on the face of the application. The respondent’s counsel contends that she failed to attend court due to inadvertence. She explained that the date that the application was listed for hearing was mistakenly not diarised by her clerk, thus her failure to attend the court. She urged the court not to punish her client on account of the mistake of counsel. The appellant objected to the application. He filed grounds of objection to the application. It was the appellant’s case that the respondent’s application lacked merit and had been filed after an inordinate delay. The appellant further stated that the advocate of the respondent did not have locus standi to prosecute the application since she had not been properly appointed to act on behalf of the respondent. He therefore urged the court to dismiss the application on costs.
At the hearing of the application, this court heard oral rival submissions made by Miss. Chelagat for the respondent and Mrs. Njuguna for the appellant. This court has carefully considered the facts of this case. It was clear to the court that the advocate of the respondent failed to attend court to prosecute the said application on account on the fact that the scheduled hearing date had not been listed in her diary. The mistake was inadvertent. The objection to the application did not raise any issues that would make this court refuse to exercise its discretion in favour of the respondent. The respondent’s counsel is properly on record. I think it is now an accepted principle of the law, that in so far as it is possible, the court should lean towards deciding cases on their merits and not on procedural technicalities. This court is of the view that this is one of the cases where the court is required to exercise its discretion in favour of the respondent and set aside the order of dismissal of the application that it had made on 9th June 2010. The appellant will be adequately compensated by an award of costs.
In the premises therefore, the order of this court made on 9th June 2010 dismissing the respondent’s application dated 14th August 2006 is hereby set aside. The said application is reinstated to hearing. The appellant shall be paid costs of this application. The respondent shall be at liberty to list the said application for hearing at the registry.
DATED AT NAIROBI THIS 15TH DAY OF MARCH, 2010
L. KIMARU
JUDGE