[2013] KEHC 2815 (KLR)
The court found that the applicant's failure to attend court on the hearing date was due to an excusable mistake by the advocate’s clerk, who incorrectly diarized the date. The court noted that the applicant had previously shown interest in prosecuting the suit by fixing hearing dates on several occasions. Citing...
Source-derived case information.
- Citation
- [2013] KEHC 2815 (KLR)
- Parties
- Applicant: Samuel Kimani Nganga; Respondent: John Kisemei Ndichu alias John Mbugua Ndichu
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Civil Case 153 of 2009
- Procedural Posture
- Miscellaneous Application / Application to Set Aside Dismissal and Reinstate Suit
- Outcome
- Application allowed. Suit reinstated. Costs to the respondent.
- Judges
- BT Jaden
- Legal Topics
- Setting Aside Dismissal, Reinstatement of Suit, Excusable Mistake, Court Discretion, Land Dispute
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Samuel Kimani Nganga
Applicant
John Kisemei Ndichu alias John Mbugua Ndichu
Respondent
Procedural Posture
Miscellaneous Application / Application to Set Aside Dismissal and Reinstate Suit
Legal Issues
- 1 Whether the order of dismissal dated 23/6/2010 should be set aside and the suit reinstated for hearing.
- 2 Whether the applicant's failure to attend court was due to an excusable mistake.
- 3 Whether the delay in filing the application was inordinate and prejudicial to the respondent.
Ratio Decidendi
The court found that the applicant's failure to attend court on the hearing date was due to an excusable mistake by the advocate’s clerk, who incorrectly diarized the date. The court noted that the applicant had previously shown interest in prosecuting the suit by fixing hearing dates on several occasions. Citing the principle that mistakes should not necessarily bar a party from having their case heard on the merits, and in the absence of fraud or intention to overreach, the court exercised its discretion to set aside the dismissal and reinstate the suit. The application was allowed, with costs awarded to the respondent.
Court Disposition
Application allowed. Suit reinstated. Costs to the respondent.
Orders
- The order of dismissal dated 23/6/2010 is set aside.
- The suit is reinstated for hearing.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
CIVIL CASE NO. 153 OF 2009 (O.S)
SAMUEL KIMANI NGANGA ……………………..…. PLAINTIFF/APPLICANT
VERSUS
JOHN KISEMEI NDICHU alias
JOHN MBUGUA NDICHU ………………...…… DEFENDANT/RESPONDENT
R U L I N G
The application dated 11/10/2011 seeks orders that the order of dismissal dated 23/6/2010 be set aside and this suit be reinstated for hearing.
The background facts are set out in the supporting affidavit sworn on 11/10/2011.
The failure to attend court on the date the suit was dismissed is attributed to a wrong entry that was made in the diary by the advocate’s clerk. The advocate’s diary reflected the hearing dated as 23/9/2010 while the court’s record reflected 23/6/2010. The court’s diary for year 2011 was filed up within a very short time and the Applicant’s advocate learnt of the dismissal order while he was waiting to fix the case in the year 2012 diary.
According to the Applicant, he stands to suffer substantially if the suit is not reinstated as the Respondent is desirous of selling the land.
In opposition to the application, the Respondent swore a replying affidavit on 6/12/11. The Respondent’s stand is that the hearing date for 23/6/2010 was taken ex parte by the Applicant who thereafter failed to attend court. The Respondent lamented that the clerk who fixed the hearing date in question has not sworn an affidavit to explain the circumstances. The Respondent blamed the Applicant for filing the application after inordinate delay. The Respondent’s prayer is that the suit herein together with the application be dismissed.
The application was canvassed by way of written submissions which I have duly considered.
The failure by the advocate’s clerk to diarize the hearing date is in my view an excusable mistake. A perusal of the court record does not reflect lack of interest in this suit by the Applicant as it has been fixed for hearing by the Applicant several times.
As stated by the Court of Appeal in Philip Chemnolo & Another –vs- Augustine Kebende (1982 – 1988) KAR;
“Blunders will continue to be made from time to time and it does not follow that because a mistake has been made that a party should suffer the penalty of not having his case heard on merits….
I think the broad equity approach to this matter, is that unless there is fraud, or intention to overreach, there is no error in default that cannot be put right by payment of costs. The court as is often said exists for the purpose of deciding the rights of the parties and not for the purposes of imposing discipline.”
Having considered the circumstances of this case, I am inclined to exercise this court’s discretion and reinstate the suit. Consequently, I allow the application with costs to the Respondent.
………………………………………
B. THURANIRA JADEN
JUDGE
Dated and delivered at Machakos this 27th day of June 2013.
………………………………………
B. THURANIRA JADEN
JUDGE