[2009] KEHC 357 (KLR)
The court held that while the mistake of counsel should not generally be visited upon the client, the court must also be satisfied that the defendant has a plausible defence raising triable issues. Upon perusal of the defence, the court found that the defendant did not have an arguable defence and that setting aside...
Source-derived case information.
- Citation
- [2009] KEHC 357 (KLR)
- Parties
- Plaintiff: National Fund for the Disabled of Kenya Registered Trustees; Defendant: Kenneth Nganga Mungai t/a Mungai & Gakuru Advocates
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 351 of 2008
- Procedural Posture
- Chamber Summons / Ruling on Application to Set Aside Court Orders
- Outcome
- Application to set aside orders dismissed with costs.
- Legal Topics
- Setting Aside Orders, Mistake of Counsel, Triable Issues, Costs Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
National Fund for the Disabled of Kenya Registered Trustees
Plaintiff
Kenneth Nganga Mungai t/a Mungai & Gakuru Advocates
Defendant
Procedural Posture
Chamber Summons / Ruling on Application to Set Aside Court Orders
Legal Issues
- 1 Whether the court should set aside its earlier orders issued on 1st July 2009.
- 2 Whether the mistake of counsel in failing to attend court should be visited upon the client.
- 3 Whether the defendant has a plausible defence raising triable issues.
Ratio Decidendi
The court held that while the mistake of counsel should not generally be visited upon the client, the court must also be satisfied that the defendant has a plausible defence raising triable issues. Upon perusal of the defence, the court found that the defendant did not have an arguable defence and that setting aside the orders would be a futile exercise. Consequently, the application to set aside the orders was dismissed with costs.
Court Disposition
Application to set aside orders dismissed with costs.
Orders
- The application dated 9th July 2009 is dismissed with costs to the plaintiff.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
Civil Case 351 of 200
NATIONAL FUND FOR THE DISABLED OF KENYA REGISTERED TRUSTEES…………………………… PLAINTIFF
VERSUS
KENNETH NGANGA MUNGAI
t/a Mungai & Gakuru Advocates…………………DIEFENDANT
RULING
The application before Court is a Chamber Summons dated 9th July 2009 brought pursuant to Order IX A Rule 10 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act. It is supported by affidavit of Kenneth Ng’an’ga Mungai and Martin Njeri Nyaga. It seeks to set aside the orders of the court issued on the 1st of July 2009.
The Plaintiff opposes the application through a replying affidavit dated 22nd July 2009.
The defendant’s counsel states that the defendant has a good defence that raises triable issues and as much the matter ought to go for full hearing. That the defendant is not to blame as failure of his advocate to attend court should not be visited upon him. The defence counsel did not attend court as he lost his diary and was not able to recall the dateof theapplication.
The Plaintiff in opposing the application argued that the application is futile as no replying affidavit had been filed in opposition to the said application. That since rent has now been paid the defence in court is a sham, and setting aside will be a futile exercise in light of the admission.
I have considered submissions by learned counsel and the authorities cited. The issue before me, is whether or not to set aside my earlier orders.
I do agree with the defence counsel that the mistake of counsel ought not to be visited upon his client. In setting aside the order, however I must also consider if the defendant has a plausible defence on record which raises triable issues. I have generally perused the defence and it does not appear to me as if the defendant has an arguable defence. It will therefore be a futile exercise to set aside the orders previously issued.
For the above reasons I decline to grant the application and dismiss the same with costs.
Dated and delivered at Nairobi this 17th day of December, 2009
ALI –ARONI
JUDGE
Ruling read in the presence of
………………………………….. For the Applicant
…………………………………… For the Respondent