[2018] KEHC 6097 (KLR)
The court found that both parties agreed the trial magistrate improperly exercised her discretion in dismissing the suit for non-attendance. Given that both parties were at fault for the non-attendance, the High Court allowed the appeal and ordered the reinstatement of the suit, making no order as to costs. The...
Source-derived case information.
- Citation
- [2018] KEHC 6097 (KLR)
- Parties
- Appellant: Robina Kemunto Mosoti; Respondent: Nyamache Tea Factory; Respondent: Itumbe Tea Factory
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 21 of 2017
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal allowed; suit reinstated; no order as to costs
- Legal Topics
- Reinstatement of Suit, Dismissal for Non Attendance, Exercise of Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Robina Kemunto Mosoti
Appellant
Nyamache Tea Factory
Respondent
Itumbe Tea Factory
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the trial magistrate properly exercised discretion in dismissing the suit for non-attendance.
- 2 Whether the suit should be reinstated after dismissal for non-attendance.
Ratio Decidendi
The court found that both parties agreed the trial magistrate improperly exercised her discretion in dismissing the suit for non-attendance. Given that both parties were at fault for the non-attendance, the High Court allowed the appeal and ordered the reinstatement of the suit, making no order as to costs. The court emphasized that judicial discretion in dismissing suits must be exercised properly and that, in the interests of justice, the suit should be reinstated to allow the parties to be heard on the merits.
Court Disposition
appeal allowed; suit reinstated; no order as to costs
Orders
- The appeal is allowed.
- The suit in Ogembo SRMCC NO. 72 of 2011 is reinstated.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KISII
CIVIL APPEAL NO. 21 OF 2017
BETWEEN
ROBINA KEMUNTO MOSOTI...............................APPELLANT
AND
NYAMACHE TEA FACTORY.......................1ST RESPONDENT
ITUMBE TEA FACTORY..............................2ND RESPONDENT
(An Appeal arising from the Ruling andOrderdated 8. 3.2017in
Ogembo SRMCC NO. 72 of 2011by Hon. Naomi Wairimu PM)
JUDGMENT
This is an appeal from the ruling and order of the trial court dismissing the appellant’s Notice of Motion dated 8th March 2017 seeking to reinstate a suit that had been dismissed for non-attendance of both parties on 30th November 2016.
Both parties agree that the trial magistrate improperly exercised her discretion. I therefore allow the appeal. I order the suit re-instated. As both parties are to blame for what happened, I make no order as to costs.
D.S MAJANJA , J
18/6/2018
Court: Judgment read and delivered in open court.
D.S MAJANJA, J
18/6/2018