[2010] KEHC 1660 (KLR)
The court found that the absence of counsel for the applicant on the date of dismissal was sufficiently explained and that, in line with the overriding objective of the Civil Procedure Act, the interests of justice required that the dismissal order be set aside. The court emphasized that procedural errors by counsel...
Source-derived case information.
- Citation
- [2010] KEHC 1660 (KLR)
- Parties
- Plaintiff: Peris Wanjiku Mukuru; Defendant: Stephen Kahura Njuguna
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 1989 of 1998
- Procedural Posture
- Civil Case / Ruling on Application to Set Aside Dismissal Order
- Outcome
- application allowed; dismissal order set aside; application reinstated
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Setting Aside Orders, Dismissal for Non Attendance, Reinstatement of Suit
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peris Wanjiku Mukuru
Plaintiff
Stephen Kahura Njuguna
Defendant
Procedural Posture
Civil Case / Ruling on Application to Set Aside Dismissal Order
Legal Issues
- 1 Whether the dismissal order made on 9th November, 2009 should be set aside.
- 2 Whether the absence of counsel constituted sufficient cause to reinstate the application.
Ratio Decidendi
The court found that the absence of counsel for the applicant on the date of dismissal was sufficiently explained and that, in line with the overriding objective of the Civil Procedure Act, the interests of justice required that the dismissal order be set aside. The court emphasized that procedural errors by counsel should not prejudice the litigant, and reinstated the application to ensure a fair determination on the merits.
Court Disposition
application allowed; dismissal order set aside; application reinstated
Orders
- The dismissal order made on 9th November, 2009 is set aside.
- The application dated 4th March, 2008 is reinstated.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CIVIL CASE NO. 1989 OF 1998
PERIS WANJIKU MUKURU………………………………..PLAINTIFF
VERSUS
STEPHEN KAHURA NJUGUNA…………………………DEFENDANT
RULING
This is an application by way of Chamber Summons under order XIB rules 2 and 8 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act seeking an order that the dismissal order made on 9th November, 2009 is set aside. The cited order is wrong because there is no order XIB in Civil Procedure Rules but, going by the application and the orders sought, I believe counsel may have wanted to cite order 1XB rules 2 and 8 of Civil Procedure Rules. That notwithstanding I have decided to address the application on merit.
On 9th November, 2009 this matter was placed before Onyancha J, and since both parties were absent the learned judge proceeded to dismiss the application dated 4th March, 2008. The present application gives reasons as to why counsel for the applicant was absent. I have looked at the proceedings and related the same to the application and the ultimate interest of the parties herein. I am also guided by the Civil Procedure Act and in particular Sections 1A and 1B as amended by Act No.6 of 2009. As a guiding principle, I am mandated to uphold the overriding objective of the Act to facilitate just, expeditious and proportionate resolution of this case. I also bear in mind that a mistake of an advocate should not be visited upon a client or litigant.
In that regard therefore, I am inclined to allow the application and set aside the said dismissal order. The end result is that, the application dated 4th March, 2008 is hereby reinstated and the costs shall be in the cause.
Orders accordingly.
Dated, signed and delivered at Nairobi this 22nd day of July, 2010.
A. MBOGHOLI MSAGHA
JUDGE