[2008] KEHC 1010 (KLR)
The court found the first defendant's explanation for his absence—vehicle breakdown and police stop while traveling by public means—plausible and believable. The court recognized the difficulty in proving such occurrences and emphasized the judicial duty to ensure parties are heard. The court exercised its...
Source-derived case information.
- Citation
- [2008] KEHC 1010 (KLR)
- Parties
- Plaintiff: Peter Thomas Wandaka; 1st Defendant: Peter Thuo Rukungu; 2nd Defendant: Francis Karanja Muthemba
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Civil Case 212 of 1982
- Procedural Posture
- Civil Case / Ruling on Application to Set Aside Dismissal
- Outcome
- Application allowed. Order of dismissal set aside. Application reinstated for hearing. Costs awarded to plaintiff.
- Judges
- MM Kasango, MSA Makhandia
- Legal Topics
- Setting Aside Orders, Reinstatement of Application, Court Discretion, Explanation for Non Attendance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Thomas Wandaka
Plaintiff
Peter Thuo Rukungu
1st Defendant
Francis Karanja Muthemba
2nd Defendant
Procedural Posture
Civil Case / Ruling on Application to Set Aside Dismissal
Legal Issues
- 1 Whether the first defendant has provided a sufficient and plausible explanation for his failure to attend court leading to the dismissal of his application.
- 2 Whether the order dismissing the application dated 25th May 2007 should be set aside and the application reinstated for hearing.
Ratio Decidendi
The court found the first defendant's explanation for his absence—vehicle breakdown and police stop while traveling by public means—plausible and believable. The court recognized the difficulty in proving such occurrences and emphasized the judicial duty to ensure parties are heard. The court exercised its discretion to set aside the dismissal order, finding the application merited and reinstating the dismissed application for hearing. Costs of the application were awarded to the plaintiff against the first defendant.
Court Disposition
Application allowed. Order of dismissal set aside. Application reinstated for hearing. Costs awarded to plaintiff.
Orders
- The order made on 23rd July 2007 dismissing the application dated 25th May 2007 is hereby set aside and the application is reinstated for hearing.
- The costs of the chamber summons dated 4th October 2007 are awarded to the plaintiff as against the first defendant.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NYERI
Civil Case 212 of 1982
PETER THOMAS WANDAKA ……….....…..….…… PLAINTIFF
Versus
PETER THUO RUKUNGU ….…………..….. 1ST DEFENDANT
FRANCIS KARANJA MUTHEMBA …....….. 2ND DEFENDANT
RULING
The chamber Summons dated 4th October 2007 is filed by the first defendant. He seeks an order setting aside the dismissal of the application dated 25th May 2007. That order of dismissal was made on 24th July 2007. The application is brought under Order IXB Rules 8 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act. In the affidavit in support the first defendant who by the time the application was dismissed was acting in person, stated that on 23rd July 2007 he was traveling using public means to Nyeri High Court from Muranga District. He stated that on that date he had left home early but the vehicle he was using broke down and it took time before he could get another vehicle. Between the distance of Karatina and Nyeri the vehicle he later bonded was stopped by Traffic Police Officer and that caused a delay in the journey. He arrived at Nyeri High Court at 9. 30 a.m. He later discovered that the application had been dismissed in his absence. He is ready and willing to prosecute that application and to that end has now appointed an advocate to represent him. The application was opposed. In opposition the plaintiff deponed that the applicant had failed to give explanation on what action he had taken in this matter between 23rd July and 4th October 2007. That was a period of 2 months. The applicant was also said to have failed to show tangible evidence to support his allegation that the vehicle he traveled in broke down or that the vehicle he later bonded was stopped by traffic police. The plaintiff finally deponed that he has been in occupation of the suit land since 1960. That he is in the process of applying for extension of time to lodge a notice of appeal in respect of this matter. I confirm that I have considered the application before court. The primary duty of all courts is to ensure that parties are heard. I have considered the reason given by the first defendant for his failure to attend court in time. That explanation in my view is plausible and believable. The applicant in my view would find it very difficult to prove to the court that a public motor vehicle broke down or that it was stopped by traffic police. Bearing in mind the reason given by the first defendant I find that the application is merited. I grant the following orders:
1. That the order made on 23rd July 2007 dismissing the application dated 25th May 2007 is hereby set aside and the application is hereby reinstated for hearing.
2. The costs of the chamber summons dated 4th October 2007 are awarded to the plaintiff as against the first defendant.
MARY KASANGO
JUDGE
Dated and delivered at Nyeri this 27th day of October 2008.
BY
M. S. A. MAKHANDIA
JUDGE