[2019] KEHC 5114 (KLR)
The court found that the plaintiff's absence on the date of dismissal was due to an honest mistake by the advocate's clerk, who failed to diarize the hearing date. The court held that this was sufficient cause not to penalize the plaintiff for her advocate's error. Given that this was the first time the court...
Source-derived case information.
- Citation
- [2019] KEHC 5114 (KLR)
- Parties
- Plaintiff: Praxides Wekesa; Defendant: Donald B. Kipkorir t/a Kipkorir, Titoo & Kiara Advocates
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 614 of 2004
- Procedural Posture
- Civil Case / Application to Set Aside Dismissal for Want of Prosecution
- Outcome
- Application allowed; dismissal order set aside; suit reinstated.
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Dismissal for Want of Prosecution, Setting Aside Orders, Application for Reinstatement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Praxides Wekesa
Plaintiff
Donald B. Kipkorir t/a Kipkorir, Titoo & Kiara Advocates
Defendant
Procedural Posture
Civil Case / Application to Set Aside Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the dismissal of the suit for want of prosecution should be set aside or reviewed.
- 2 Whether the plaintiff has demonstrated sufficient cause for non-attendance on the date of dismissal.
- 3 Whether the mistake of the plaintiff's advocate's clerk constitutes sufficient cause to reinstate the suit.
Ratio Decidendi
The court found that the plaintiff's absence on the date of dismissal was due to an honest mistake by the advocate's clerk, who failed to diarize the hearing date. The court held that this was sufficient cause not to penalize the plaintiff for her advocate's error. Given that this was the first time the court exercised its power to dismiss the suit under Order 17 Rule 2, and considering the plaintiff's readiness to prosecute the matter, the court exercised its discretion to set aside the dismissal order. The suit was reinstated with a directive that the plaintiff prosecute the case within 120 days.
Court Disposition
Application allowed; dismissal order set aside; suit reinstated.
Orders
- The dismissal order made on 15th February, 2019 is set aside.
- The suit is reinstated.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OFKENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL CASE NO. 614 OF 2004
PRAXIDES WEKESA.......................................PLAINTIFF
VERSUS
DONALD B. KIPKORIR
T/A KIPKORIR, TITOO & KIARA
ADVOCATES.................................................DEFENDANT
RULING
The plaintiff’s suit was dismissed on 15th February, 2019 for want of prosecution under Order 17 Rule 2 of the Civil Procedure Rules. There is now an application before me by way of Notice of Motion under Section 3A and Order 50 Rule 15 of the Civil Procedure Rules, for orders that the dismissal order be set aside and or reviewed. It is the plaintiff’s case that the absence and or none attendance by the advocate on the date the suit was dismissed was not deliberate but caused by sufficient cause and in any case, the applicant is ready to pursue the case to its logical conclusion.
The application is opposed and grounds of opposition have been filed on behalf of the defendant. Both parties have also addressed the court on the application. I have perused the record of this case from the time the suit was filed. Both parties have variously caused the delay in the prosecution and determination of this suit.
The supporting affidavit sworn by the advocate for the plaintiff has owned up to the mistake attributed to the clerk in the office, who failed to diarize the date when the suit was listed for notice to show cause. I consider that an honest mistake which should not be visited upon the plaintiff.
As at the time the dismissal order was made, it was one year and 5 months from the last time the case was in court, that is 28th September, 2017. It is true that this is an old case, but being the first time in which the court has exercised its power under the cited rules to dismiss the suit, the plaintiff should be given an opportunity to prosecute the case.
I am inclined to allow the application which I hereby do and order that the dismissal order made on 15th February, 2019 be and is hereby set aside. The suit is accordingly reinstated. The plaintiff shall endeavour to prosecute this suit within the next 120 days from the date of this ruling. The costs shall be in the cause.
Dated, signed and delivered at Nairobi this 29th Day of July, 2019.
A.MBOGHOLI MSAGHA
JUDGE