[2015] KEHC 1348 (KLR)
The court found that the lapse of the interim injunction was due to an inadvertent mistake by counsel in diarising the hearing date, not due to any fault or delay by the applicant. The court held that punishing a litigant for counsel's mistake would not serve the interests of justice, especially where the applicant...
Source-derived case information.
- Citation
- [2015] KEHC 1348 (KLR)
- Parties
- Appellant: Salim Idi Mohamed Salim; Respondent: Nairobi City County; Respondent: Stephen Tom Okeyo Abebe
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 430 of 2014
- Procedural Posture
- Civil Appeal / Ruling on Application for Reinstatement of Interim Injunction
- Outcome
- application allowed
- Legal Topics
- Injunctions, Reinstatement of Orders, Mistake by Counsel, Case Management, Interlocutory Applications
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Salim Idi Mohamed Salim
Appellant
Nairobi City County
Respondent
Stephen Tom Okeyo Abebe
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Reinstatement of Interim Injunction
Legal Issues
- 1 Whether the interim injunction order that lapsed due to non-attendance should be reinstated.
- 2 Whether an advocate's mistake in diarising the hearing date justifies setting aside the lapse of orders.
- 3 Whether the applicant acted promptly and in good faith to remedy the situation.
Ratio Decidendi
The court found that the lapse of the interim injunction was due to an inadvertent mistake by counsel in diarising the hearing date, not due to any fault or delay by the applicant. The court held that punishing a litigant for counsel's mistake would not serve the interests of justice, especially where the applicant acted promptly to remedy the situation. Citing established case law, the court reaffirmed that errors by counsel should not prevent a party from having their case heard on the merits unless there is evidence of fraud or intention to overreach. The court concluded that the application had merit and that the interim injunction should be reinstated, with the substantive motion to...
Court Disposition
application allowed
Orders
- The interim order of injunction given on 29th September, 2014 which lapsed on 21st October, 2014 is reinstated pending further orders of the court.
- The notice of motion dated 26th September, 2014 shall be given a hearing date in the registry on priority basis.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL APPEAL NO. 430 OF 2014
SALIM IDI MOHAMED SALIM........................................APPELLANT
VERSUS
NAIROBI CITY COUNTY
STEPHEN TOM OKEYO ABEBE......................RESPONDENTS
RULING
By an application of notice of motion application dated 22nd October, 2014 under Order 42 rule 6 (1) and (6), Order 50 rule 6 and Order 51 rule (1) of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act, the appellant/applicant is seeking the following orders:-
Reinstatement of the interim orders of injunction given on 29th September, 2014 which lapsed on 21st October, 2014.
That the notice of motion dated 26th September, 2014 be given a hearing date on priority.
The application is premised on the grounds set out on the body of the application and the supporting affidavit of Donald O. Owang' advocate.
The reasons advanced are that the motion dated 26th September, 2014 was fixed for hearing on 21st October, 2014 but counsel for the parties inadvertently diarised the date as 22nd October, 2014 as a result of which they did not attend court.
That it is for that reason that the application was stood over and the interim orders of injunction restraining the Respondents from evicting the Applicant from the premises known as House No. D 31 New Ngara was never extended.
There is no replying affidavit on record opposing this application.
When this matter came up for hearing on 20th May, 2015, parties agreed and it was adopted as the order of court that this application be dispensed with by way of written submissions. I however note that although the parties stated that they had complied as ordered, the submissions on record relate to the application dated. I do not seen order for the hearing of the application dated 26th September, 2014. I shall therefore consider the depositions in the application.
It has not been contested that the party’s counsel inadvertently mis-diarised the matte. I therefore find that it is in the interest of justice that this application be allowed.
This court has severally held that punishing an advocate for every sundry of blunders does not necessarily accord justice to the client.
And that Indeed, the main purpose of litigation, namely the hearing and determination of disputes, should be fostered rather than hindered and errors and lapses should not necessary debar a litigant from the pursuit of his rights under the law by ousting him from the judgment seat. In this case, the applicant timeously filed this application to remedy the situation.
In Philip Kelpto Chemwolo & Another V Augustine Kubende (1986) KLR 492, the Court of Appeal was categorical that:
“ Blunders will continue to be made from time to time and it does not follow that because a mistake has been made a party should suffer the penalty of not having his case determined on its merits”….. I think the broad equity approach to this matter is that unless there if fraud or intention to overreach there is no error or default that cannot be put right by payment of costs. The court as is often said exists for the purposes of deciding the rights of the parties and not for the purpose of imposing discipline.”
InMwai V Murai No. 4 (1982) KLR Madan JAsaid.
“A mistake is a mistake, it is no less a mistake because it is an unfortunate slip. It is no less pardonable because it was committed by Senior Counsel though in the case of Junior counsel, the court might feel compassionate more readily. A blunder on a point of law can be a mistake. The door of justice is not closed because a mistake has been made by a person of experience who ought to have known better. The court may not forgive or condone it but it ought certainly to do whatever is necessary to rectify it if the interests of justice so dictate.”
The speed with which the Appellant filed this application is an indication of good faith and that the application is not meant to defeat the interest of justice or to steal a match on the respondent. In the circumstances, I find that the application has merit and make orders as follows:-
That the interim order of injunction given on 29th September, 2014 which lapsed on 21st October, 2014 be and is hereby reinstated pending further orders of this court.
That the notice of motion dated 26th September, 2014 be given a hearing date in the registry on priority basis.
Costs shall be in the cause.
Dated, signed and delivered in open court at Nairobi this 29th day of October, 2015.
R.E.ABURILI
JUDGE