[2011] KEHC 4374 (KLR)
The court found that the defendants, acting in person, provided a plausible explanation for their absence, namely that they were misinformed by the registry regarding the hearing date. The immediacy with which they filed the present application upon discovering the dismissal further supported their bona fides. Given...
Source-derived case information.
- Citation
- [2011] KEHC 4374 (KLR)
- Parties
- Plaintiff: Noah Njuguna Gathenge; Defendant: Teresiah Wanini Kibui; Defendant: Alexander Kimani Kibui
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 88 of 2009
- Procedural Posture
- Civil Case / Ruling on Application to Set Aside Dismissal Order
- Outcome
- Application allowed; order of 2nd March 2010 set aside; costs to defendants.
- Judges
- KH Rawal
- Legal Topics
- Review of Court Orders, Setting Aside Orders, Exhumation Disputes, Burial Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Noah Njuguna Gathenge
Plaintiff
Teresiah Wanini Kibui
Defendant
Alexander Kimani Kibui
Defendant
Procedural Posture
Civil Case / Ruling on Application to Set Aside Dismissal Order
Legal Issues
- 1 Whether the order dismissing the defendants' application for non-appearance should be set aside.
- 2 Whether the defendants provided a reasonable explanation for their absence on the hearing date.
- 3 Whether the seriousness of the subject matter warrants the exercise of the court's discretion to review its order.
Ratio Decidendi
The court found that the defendants, acting in person, provided a plausible explanation for their absence, namely that they were misinformed by the registry regarding the hearing date. The immediacy with which they filed the present application upon discovering the dismissal further supported their bona fides. Given the seriousness of the issue—exhumation of a deceased person—the court exercised its discretion to set aside the order of 2nd March 2010, thereby allowing the defendants an opportunity to be heard on the merits of their application. The court also directed that the substantive application be given a priority hearing date, but ordered the defendants to pay the costs of the...
Court Disposition
Application allowed; order of 2nd March 2010 set aside; costs to defendants.
Orders
- The order of 2nd March 2010 dismissing the defendants' application is set aside.
- The registry is directed to give a priority hearing date to the application dated 16th October 2009.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MILIMANI LAW COURTS
CIVIL CASE NO. 88 OF 2009
NOAH NJUGUNA GATHENGE ……........................………...……PLAINTIFF/APPLICANT
VERSUS
TERESIAH WANINI KIBUI ……….......................………1ST DEFENDANT/RESPONDENT
ALEXANDER KIMANI KIBUI …….........................…….2ND DEFENDANT/RESPONDENT
RULING
The Defendants in the suit had been ordered to exhume the remains of one Livingstone Kibue Methe from the suit land who is the late husband of the 1st Defendant vide the ruling of Hon. Sitati J delivered on 25th September 2009. The Defendants thereupon filed a Notice of Motion dated 16th October 2009 to seek orders that the said orders be reviewed, varied or set aside. The application was dismissed for non-appearance by the same Judge on 2nd March 2010. Thereupon the Defendants have filed the application dated 3rd March 2010 seeking now to set aside the orders issued on 2nd March 2010. This application came up for hearing on many occasions before several Judges. The Plaintiff also had filed an application dated 16th March 2010 to seek leave to file contempt proceedings against the Defendants. Apart from being given a hearing date on 20th July 2010 by this court, the Plaintiff said application has not been thereafter given any hearing date.
The present application is based on the grounds that Defendants, who are acting in person, were informed at the registry that their application dated 16th October 2009 was fixed for hearing on 3rd March 2010 but the same was instead listed on 2nd March 2010 and was dismissed in their absence. The Defendants have raised the issue that the deceased, whose remains are ordered to be exhumed, had purchased the suit land and had shown them his place of burial on the suit land where he was buried. The application is opposed on the grounds by the Plaintiff that the same is without merit, that it does not give reasonable explanation for the absence of the Defendants on the hearing date and that the court should not indulge the indolent.
I have considered the application with the grounds in support and in opposition thereof. I note that the date for inter parte hearing was taken by the defendant at the registry. I cannot just brush away the averment by the party appearing in person that he was told that the application is fixed for hearing on 3rd of March 2010 instead of 2nd March 2010. I am more fortified on my observation by the fact that this application was immediately filed on the same day, i.e. on 3rd March 2010 when they came to the court for hearing. Furthermore, the issue on hand is also serious in all respect.
In the premises, I shall exercise my discretion and review the order of 2nd March 2010 by setting aside the same. I further order that the registry should give a hearing date on priority to the application dated 16th October 2009.
The Defendants to pay the cost of this application dated 3rd March 2010.
Dated, signedand delivered at Nairobi this 30th day of November, 2011
K. H. RAWAL
JUDGE
30. 11. 2011