[2014] KEHC 7951 (KLR)
The court found that the applicant's counsel was not served with notice to show cause before the matter was dismissed for want of prosecution. Since the application was unopposed and the file was active at the time of dismissal, the court held that it was in the interests of justice to set aside the dismissal order....
Source-derived case information.
- Citation
- [2014] KEHC 7951 (KLR)
- Parties
- Applicant: Republic; Respondent: Town Clerk, City Council of Nairobi; Applicant: Leah Wambui Kamande
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Judicial Review 159 of 2003
- Procedural Posture
- Judicial Review / Ruling on Application to Set Aside Dismissal Order
- Outcome
- Application allowed. Dismissal order set aside.
- Legal Topics
- Dismissal for Want of Prosecution, Notice to Show Cause, Setting Aside Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Town Clerk, City Council of Nairobi
Respondent
Leah Wambui Kamande
Applicant
Procedural Posture
Judicial Review / Ruling on Application to Set Aside Dismissal Order
Legal Issues
- 1 Whether the applicant was served with notice to show cause before the dismissal for want of prosecution.
- 2 Whether the order dismissing the case for want of prosecution should be set aside.
Ratio Decidendi
The court found that the applicant's counsel was not served with notice to show cause before the matter was dismissed for want of prosecution. Since the application was unopposed and the file was active at the time of dismissal, the court held that it was in the interests of justice to set aside the dismissal order. The application to set aside the order of 16th March, 2012 was therefore allowed.
Court Disposition
Application allowed. Dismissal order set aside.
Orders
- The order of 16th March, 2012 dismissing the case is set aside.
- The application dated 4th November, 2013 is allowed as prayed.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
JUDICIAL REVIEW DIVISION
JR CASE NO. 159 OF 2003
REPUBLIC.....................................................................APPLICANT
VERSUS
THE TOWN CLERK,
CITY COUNCIL OF NAIROBI................................... RESPONDENT
EX-PARTE.................................................... LEAH WAMBUI KAMANDE
RULING
Through the notice of motion application dated 4th November, 2013 the applicant prays that this Court sets aside its order of 16th March, 2012 dismissing her case. The application is supported by an affidavit sworn on 5th November, 2013 by Ndolo Felix Onyango, an advocate of the High Court. In the said affidavit the deponent who is the applicant’s counsel avers that he was not served with any notice to show cause on the intended dismissal of the matter for want of prosecution. He averred that the file was active at the time of the dismissal as the applicant had filed an application dated 18th October, 2012.
The application is not opposed. I have considered the applicant counsel’s unchallenged averment that notice was not served before the matter was dismissed and find that it is in the interests of justice that the dismissal order issued on 16th March, 2012 should be set aside. The application dated 4th November, 2013 is therefore allowed as prayed. Costs in the cause
Dated, signed and delivered at Nairobi this 6th day of June, 2014
W. KORIR,
JUDGE OF THE HIGH COURT