[2003] KEHC 594 (KLR)
The court found that the applicant's counsel's failure to attend the hearing on 14th January 2003 was due to an excusable mistake or inadvertence, as he was misled by a letter in the file indicating different hearing dates. There was no evidence of deliberate obstruction or delay of justice. Applying the principle...
Source-derived case information.
- Citation
- [2003] KEHC 594 (KLR)
- Parties
- Plaintiff: Mutuma Angaine; Defendant: Nation Newspapers Ltd
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 998 of 1993
- Procedural Posture
- Civil Case / Ruling on Application to Set Aside Dismissal Order
- Outcome
- application allowed
- Legal Topics
- Setting Aside Orders, Ex Parte Judgment, Court Discretion, Inadvertence, Excusable Mistake
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mutuma Angaine
Plaintiff
Nation Newspapers Ltd
Defendant
Procedural Posture
Civil Case / Ruling on Application to Set Aside Dismissal Order
Legal Issues
- 1 Whether the dismissal order made on 14th January 2003 should be set aside due to counsel's inadvertence.
- 2 Whether the applicant's counsel's mistake was excusable under the principles governing setting aside ex parte orders.
Ratio Decidendi
The court found that the applicant's counsel's failure to attend the hearing on 14th January 2003 was due to an excusable mistake or inadvertence, as he was misled by a letter in the file indicating different hearing dates. There was no evidence of deliberate obstruction or delay of justice. Applying the principle from Shah v. Mbogo, the court exercised its discretion to set aside the dismissal order to avoid injustice, as the mistake was innocent and not intended to frustrate the judicial process. The application to set aside the dismissal order was therefore allowed, with costs awarded to the respondent.
Court Disposition
application allowed
Orders
- The dismissal order made on 14th January 2003 is set aside.
- Costs of the application are awarded to the respondent.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT FO KENYA AT NAIROBI
civ case 998 of 93
MUTUMA ANGAINE ……………………….PLAINTIFF
V E R S U S
NATION NEWSPAPERS LTD ……………DEFENDANT
R U L I N G
This is an application to set aside the dismissal order made by this court on the 14th January 2003. According to affidavit of Chacha Odera sworn on 3rd January 2003 counsel admits that he was misled by a copy of the letter in that file showing that the dates for hearing were 15th and 16th January 20003. So he discounted the possibility of hearing being on 14th January 2003. But Miss Berly Ouma in her affidavit sworn on 21st of March opposes the application saying the date was indeed confirmed for that date since she corrected it.
I think what is disclosed here is inadvertence by the applicants counsel to confirm factually and mentally that the date was 14th January 2003. I have noted the reference to the 3 dates of 14th, 15th and 16th and I appreciate innocent mistake could have been made. I am ready to apply the principle stated by Harris J. in Shah vs. Mbogo 1967 EA 116 that the courts discretion to set aside exparte judgment is intended to be exercised to avoid injustice on hardship and resulting from accident inadvertence or excusable mistake or error, but not to assist a person who had deliberately sought (whether by evasion or otherwise) to obstruct or delay the cause of justice the motion should be refused.
I see here there was no such attempt to obstruct or delay. This was excusable mistake or inadvertence and allow the application. Cost of the application to the respondent.
Delivered this 11th day of July 2003
A. I. HAYANGA
J U D G E
Read to Ms Ouma
And Mr. Okech
11. 7.2003