[2021] KEHC 12650 (KLR)
The court found that the Applicants' failure to attend the virtual hearing was due to excusable technical hitches, and that the application to set aside the dismissal was filed without unreasonable delay. The court considered the challenges posed by the COVID-19 pandemic and the transition to virtual proceedings,...
Source-derived case information.
- Citation
- [2021] KEHC 12650 (KLR)
- Parties
- Plaintiff: Nishit Raikundalia; Plaintiff: Sawan Raikundalia; Defendant: Sol Electronics Kenya; Defendant: Vinod Satpute; Defendant: Rajesh Ramesh
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 94 of 2017
- Procedural Posture
- Civil Application / Ruling on Application to Set Aside Dismissal and Reinstate Motion
- Outcome
- application allowed
- Judges
- BT Jaden
- Legal Topics
- Setting Aside Orders, Reinstatement of Suit, Virtual Hearings, Excusable Mistake
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nishit Raikundalia
Plaintiff
Sawan Raikundalia
Plaintiff
Sol Electronics Kenya
Defendant
Vinod Satpute
Defendant
Rajesh Ramesh
Defendant
Procedural Posture
Civil Application / Ruling on Application to Set Aside Dismissal and Reinstate Motion
Legal Issues
- 1 Whether the order dismissing the Defendant's Notice of Motion for non-attendance should be set aside.
- 2 Whether the application to reinstate the dismissed motion was filed without unreasonable delay.
- 3 Whether the failure to attend the virtual court was excusable.
Ratio Decidendi
The court found that the Applicants' failure to attend the virtual hearing was due to excusable technical hitches, and that the application to set aside the dismissal was filed without unreasonable delay. The court considered the challenges posed by the COVID-19 pandemic and the transition to virtual proceedings, noting that such circumstances could justify the absence. The court exercised its discretion to set aside the dismissal order, allowing the application to be reinstated so that it could be heard on its merits. The issue of the merits of the substantive application was left for determination at the interpartes hearing.
Court Disposition
application allowed
Orders
- The order dismissing the Defendant's Notice of Motion dated 29th October, 2019 is set aside.
- The application is reinstated for hearing on its merits interpartes.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL DIVISION
HIGH COURT CIVIL CASE NO. 94 OF 2017
NISHIT RAIKUNDALIA............................................................1ST PLAINTIFF
SAWAN RAIKUNDALIA........................................................2ND PLAINTIFF
VERSUS
SOL ELECTRONICS KENYA.............................................1ST DEFENDANT
VINOD SATPUTE.................................................................2ND DEFENDANT
RAJESH RAMESH...............................................................3RD DEFENDANT
RULING
1. The application dated 1st October, 2020 seeks orders that the order issued on 16th September, 2020 by the honourable court dismissing the Defendant’s Notice of Motion dated 29th October,2019 for non-attendance be set aside and the application be reinstated for hearing on its merits interpartes.
2. It is stated in the grounds and the affidavit in support of the application that the Applicants’ Advocate was unable to join the virtual court due to technical hitches. The Applicants urged the court to allow them to ventilate their application on merits.
3. The application is opposed. It is stated that the application sought to be reinstated has no merits. The Respondent’s saw the Applicants’ conduct in this matter as aimed at delaying the suit.
4. The Applicants filed a supplementary affidavit in response and contended that the application sought to be reinstated has merits and explained the time taken to establish the position of the proceedings herein as due to the COVID 19 pandemic challenges.
5. I have considered the application, the response to the same and the written submissions filed by the respective counsel for the parties.
6. Since the commencement of the virtual court proceedings due to the COVID 19 Pandemic, there are various challenges and some parties have been unable to join the proceedings. The application at hand was filed without unreasonable delay. The mistake by counsel is therefore excusable and this court is inclined to hear the matter on merits. I will leave the issue of whether the application dated 29th October, 2019 is meritorious to the hearing of the same.
7. With the foregoing, I allow the application with costs in cause.
Date, signed and delivered at Nairobi this 25th day of Feb., 2021
B. THURANIRA JADEN
JUDGE