[2006] KEHC 1824 (KLR)
The court found that the applicant's counsel failed to exercise the necessary diligence by assuming the matter would be heard in the afternoon without confirming the cause list, especially given that the matter had already been dismissed once before for non-attendance and was only reinstated by consent. The court...
Source-derived case information.
- Citation
- [2006] KEHC 1824 (KLR)
- Parties
- Plaintiff: Playfair Enterprises Ltd; Defendant: Princely House Ltd
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 289 of 1996
- Procedural Posture
- Civil Case / Ruling on Application to Set Aside Dismissal Order and Reinstate Chamber Summons
- Outcome
- application dismissed with costs to the respondent
- Legal Topics
- Setting Aside Orders, Non Attendance, Reinstatement of Application
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Playfair Enterprises Ltd
Plaintiff
Princely House Ltd
Defendant
Procedural Posture
Civil Case / Ruling on Application to Set Aside Dismissal Order and Reinstate Chamber Summons
Legal Issues
- 1 Whether the applicant has provided sufficient reason for non-attendance on 13th June 2003 to warrant setting aside the dismissal order.
- 2 Whether the Chamber Summons of 26th March 2002 should be reinstated and heard inter partes.
Ratio Decidendi
The court found that the applicant's counsel failed to exercise the necessary diligence by assuming the matter would be heard in the afternoon without confirming the cause list, especially given that the matter had already been dismissed once before for non-attendance and was only reinstated by consent. The court noted that Chamber Summons are generally not listed on Friday afternoons unless specifically recorded by the judge, and the cause list clearly indicated a 9:00 a.m. hearing. The explanation provided by the applicant was therefore not satisfactory, and the court declined to exercise its discretion to set aside the dismissal order. The application was dismissed with costs to the...
Court Disposition
application dismissed with costs to the respondent
Orders
- The application dated 17th June 2003 is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Civil Case 289 of 1996
PLAYFAIR ENTERPRISES LTD……………………...................................…………………PLAINTIFF
VERSUS
PRINCELY HOUSE LTD……………………………...............................………………….DEFENDANT
RULING
The Ruling is delivered in the application dated 17th June 2003 in which the applicant seeks the setting aside of an order made on 13th June, 2003 dismissing the applicants’ Chamber Summons of 26th March 2002 for non attendance. The applicant prays that once the dismissal order is set aside the said chamber summons of 26th march 2002 be reinstated and heard inter partes. The reasons given for not attending court on the due date are that Counsel, although aware of the hearing date was under the misapprehension that the same would be heard in the afternoon as is the practice in the courts.
In the Affidavit filed in support of the application before me counsel swears in paragraph 4 that in view of his belief that applications are heard in the afternoon, he assumed that his clients case would be heard in the afternoon and fixed another mater for hearing, Tribunal Case No. 51 of 2001 at the Co-operatives Tribunal.
The Application opposed by the Respondents who obviously do not wish to have this matter consolidated with H.C.C.C No. 1009 of 2001 as is sought by the Applicants in the Chamber Summons of 26th March 2002. The Respondents have submitted both in writing and orally that the non-attendance by Counsel on the 13th June 2003 is not excusable for reasons that the application sought to be reinstated had previously been dismissed again for non attendance by Counsel on 22nd may 2003 but counsel for the Respondent consented to the dismissal order being vacated consequently to which the application reinstated for hearing on 13th June 2003. The record bears counsel for the Respondent out by showing clearly that on 22nd May 2003 both parties appeared before the Hon. Mr. Justice Hayanga (as he then was) and were allocated a hearing at 3. 30 p.m. Counsel for the applicant failed to turn up and the application was dismissed.
By consent of Counsel the dismissal order was lifted later on the same day and the same fixed for 13th June 2003. The court did not say the same was to be listed for the afternoon. The cause list exhibited by Counsel for the Applicant clearly shows that the 13th of June 2003 was a Friday and that the matter was listed at 9. 00 a.m. whereas it is true that most courts in the Civil division of the High Court at Nairobi hear applications in the morning, there are no Chamber Summons listings on Friday afternoon, unless the same has been recorded by the Judge before whom a date is taken. The correct assumption for counsel in the circumstances should therefore have been that the matter would be heard in the morning and therefore check the list and confirm the position before going elsewhere. I consider this to be a matter where diligence was necessary but was not exercised. I have studied the application sought to be reinstated and do not consider it to be of a nature where prejudice can be presumed to follow my failure to exercise my discretion as is sought herein.
Not being satisfied of the reasons given for non attendance on 13th June 2003, I decline to allow the application and dismiss the same with costs to the Respondents.
Dated and Delivered at Nairobi this 7th day of July 2006
M.G. MUGO
JUDGE
In the presence of
Njoroge Mwate holding brief for Applicant for S. Gitau
Isindu for Respondent