[2020] KEHC 9402 (KLR)
The court found that the Defendant's failure to attend court on 17th October 2019 was due to a genuine mistake by counsel, specifically a mis-diarisation of the hearing date. The court held that it would be unjust to punish the Defendant for the error of their advocate. Consequently, the court exercised its...
Source-derived case information.
- Citation
- [2020] KEHC 9402 (KLR)
- Parties
- Plaintiff: Samuel Wandera; Plaintiff: Moses Juma Majonda; Defendant: Mastermind Tobacco (K) Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 75 of 2006
- Procedural Posture
- Civil Case / Ruling on Application to Set Aside Dismissal and Reinstate Application
- Outcome
- Application allowed. Orders of 17th October 2019 set aside. Defendant's application dated 9th July 2019 reinstated. Costs to Defendant.
- Legal Topics
- Setting Aside Orders, Reinstatement of Application, Non Attendance, Mistake of Advocate
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Samuel Wandera
Plaintiff
Moses Juma Majonda
Plaintiff
Mastermind Tobacco (K) Limited
Defendant
Procedural Posture
Civil Case / Ruling on Application to Set Aside Dismissal and Reinstate Application
Legal Issues
- 1 Whether the court should set aside its order dismissing the Defendant's application for non-attendance.
- 2 Whether the Defendant's application should be reinstated for hearing and determination.
- 3 Whether the Defendant should bear the costs of the present application.
Ratio Decidendi
The court found that the Defendant's failure to attend court on 17th October 2019 was due to a genuine mistake by counsel, specifically a mis-diarisation of the hearing date. The court held that it would be unjust to punish the Defendant for the error of their advocate. Consequently, the court exercised its discretion to set aside the order dismissing the Defendant's application and ordered the reinstatement of the application for hearing and determination. The court, however, directed that the costs of the present application be borne by the Defendant.
Court Disposition
Application allowed. Orders of 17th October 2019 set aside. Defendant's application dated 9th July 2019 reinstated. Costs to Defendant.
Orders
- The court's order of 17th October 2019 dismissing the Defendant's application is set aside.
- The Defendant's application dated 9th July 2019 is reinstated for hearing and determination.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
CIVIL CASE NO.75 OF 2006
SAMUEL WANDERA………………………………..………1ST PLAINTIFF
MOSES JUMA MAJONDA………………………………….2ND PLAINTIFF
VERSUS
MASTERMIND TOBACCO (K) LIMITED…………………DEFENDANT
RULING
Before Court is the Notice of Motion dated 31st October 2019seeking the following Orders:-
“1. SPENT
2. THAT the Honourable Court be pleased to set aside its orders of 17th October 2019 dismissing the Defendant’s application dated 9th July 2019 for non-attendance.
3. THAT the Honourable court be pleased to order reinstatement of the Defendant’s application dated 9th July 2019 for hearing and determination.
4. THAT costs of this application be provided for.
The Plaintiffs opposed the application. The application was canvassed orally in open Court on 5th February 2020.
I have considered the arguments before me and I find merit in this present application. I have put into consideration the explanation given for failure of Counsel to be in Court on 17th October 2019 when their application was set for hearing. Counsel has explained that they mis-diarised the hearing date. This is a fault or error on the part of the Advocate. The Defendant (Client) ought not be punished for mistakes of his lawyer. For this reason I allow the Notice of Motion dated 31st October 2019, in terms of prayers (2) & (3) thereof.
Costs to be met by the Defendant.
Dated in Nairobi this 25th day of February 2020.
….……………………………..
Justice Maureen A. Odero