[2004] KEHC 2102 (KLR)
The court exercised its discretion to set aside the dismissal order, accepting the appellant's explanation that the notice to show cause was not received in time due to postal delays and office closure for the Christmas holidays. The court found no evidence of deliberate delay or prejudice to the respondent and...
Source-derived case information.
- Citation
- [2004] KEHC 2102 (KLR)
- Parties
- Appellant: Nation Media Group Limited; Respondent: Moses Kamande Kamau
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 458 of 2002
- Procedural Posture
- Civil Appeal / Application to Set Aside Dismissal Order
- Outcome
- Application allowed; dismissal order set aside; appeal reinstated.
- Legal Topics
- Setting Aside Orders, Nonattendance, Notice to Show Cause, Court Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nation Media Group Limited
Appellant
Moses Kamande Kamau
Respondent
Procedural Posture
Civil Appeal / Application to Set Aside Dismissal Order
Legal Issues
- 1 Whether the court should set aside the dismissal order made due to nonattendance of the appellant's advocate.
- 2 Whether the appellant's explanation for nonattendance is sufficient to warrant reinstatement of the appeal.
Ratio Decidendi
The court exercised its discretion to set aside the dismissal order, accepting the appellant's explanation that the notice to show cause was not received in time due to postal delays and office closure for the Christmas holidays. The court found no evidence of deliberate delay or prejudice to the respondent and emphasized the importance of hearing the appeal on its merits. The overriding objective of doing justice between the parties justified reinstating the appeal.
Court Disposition
Application allowed; dismissal order set aside; appeal reinstated.
Orders
- The order of this Court made on December 19, 2003 is set aside.
- The appeal is reinstated for hearing on its merits.
Full Case Text
Judgment text and source record
9 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBICIVIL CASE NO. 458 OF 2002 NATION MEDIA GROUP LIMITED :::::::::::::::::::::::::::: APPELLANT VERSUS MOSES KAMANDE KAMAU ::::::::::::::::::::::::::::::::::::: RESPONDENT RULING
This is an Application to set aside the Order of this Court made on December l9, 2003 dismissing this appeal on ground of nonattendance of the Advocate for the Appellant. Apparently, the Notice to Show Cause issued under Order 41 r.31(2) was posted to the Appellant’s Advocate on November 11, 2003. He has sworn an Affidavit stating that he did not receive the same until January 6, 2004 when he reopened his offices after the Christmas Holidays. His office had been closed for Christmas from December 17, 2003 to January 6, 2004. Meanwhile, the Notice to Show Cause was heard on December 19, 2003, in his absence.
Although it is rather unusual that a notice posted on November 11, 2003 would not be received before December 19, 2003, I am prepared to give the Appellant the benefit of doubt that this actually happened because of a delay in the post office. I do not believe that this decision will cause serious prejudice to the Respondent because this case is neither old, nor has the Appellant done anything to deliberately delay the expeditious resolution of the appeal.
The Civil Procedure Rules (Order 9A Rule l0) confers to this court unlimited discretion to set aside or vary an order entered in default of complying with a procedural requirement. The concern of the court is to do justice to the parties. There are arguable issues on appeal and it is important that the parties are heard on merit.
I, therefore, set aside the order of this Court made on December19, 2003 and reinstate the appeal for hearing on its merits.
Dated and Delivered at Nairobi this 27th day of February, 2004.
ALNASHIR VISRAM
JUDGE