[2005] KEHC 799 (KLR)
The court found that the application to reinstate the suit was brought after an inordinate delay of 14 months, which was not satisfactorily explained. The applicant's advocate was aware of the hearing date, and the court record confirmed that the matter was listed and called out, with only the defendant present. The...
Source-derived case information.
- Citation
- [2005] KEHC 799 (KLR)
- Parties
- Plaintiff: Omar Said; Defendant: Attorney General
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 635 of 1990
- Procedural Posture
- Civil Suit / Ruling on Application to Reinstate
- Outcome
- application dismissed
- Legal Topics
- Dismissal for Non Appearance, Reinstatement of Suit, Inordinate Delay
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Omar Said
Plaintiff
Attorney General
Defendant
Procedural Posture
Civil Suit / Ruling on Application to Reinstate
Legal Issues
- 1 Whether the suit should be reinstated after dismissal for non-appearance.
- 2 Whether the delay of 14 months in bringing the application to reinstate is excusable.
Ratio Decidendi
The court found that the application to reinstate the suit was brought after an inordinate delay of 14 months, which was not satisfactorily explained. The applicant's advocate was aware of the hearing date, and the court record confirmed that the matter was listed and called out, with only the defendant present. The affidavit in reply was undermined by the attachment of the wrong cause list. Given the age of the case, its previous dismissal and reinstatement, and the lack of merit in the explanations provided, the court held that there was no justification to reinstate the suit. The application was therefore dismissed with costs.
Court Disposition
application dismissed
Orders
- The application to reinstate the suit is dismissed with costs.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYAAT MOMBASACivil Suit 635 of 1990OMAR SAID ……………………………………………………………….PLAINTIFF
VERSUS
ATTORNEY GENERAL ………………………………………………DEFENDANTR U L I N G Application dated 31/7/03 seeks orders to reinstate this suit, which was dismissed on 16/4/2002 for non-appearance. Let it be noted that the application was brought before court after not less than 14 months. This is inordinate delay.
The Applicants advocate was aware that the suit was fixed for hearing on that date see par.2 of the grounds on the body of application. This case was the only one in the High Court jurisdiction. Other cases listed were in subordinate courts. See the affidavit of applicant par.5 and 6. Advocate was held up in subordinate courts until 12. 30 when he advised his client to go home as the case was not listed. This was not the case.
The affidavit in reply annexed the wrong cause list before Justice Onyancha on that day. However this court record shows that the matter was listed before my court. On 16. 4.02 and no appearance by the plaintiff but only the defendant. The minute for that day shows that the Court called out the case outside. The case is old (1990). It had been dismissed previously 5 years past and was reinstated. Therefore the replying affidavit has no effect as the matters are clear on the record. I see no merit in this application.
The same is dismissed with costs.
Delivered and dated at Mombasa this 29th Day of September 2005.
J. KHAMINWA J U D G E 29/9/05
Khaminwa, J Jason – Court Clerk Mr. Kilonzo h/b Asige
N/A
Notice issued
Ruling read.
KHAMINWA, J