[2019] KEHC 12230 (KLR)
The court found that the failure to file the affidavit of service was a mistake by counsel for the defendant, not the defendant itself. The affidavit of service, once produced, demonstrated that the amended defence and counterclaim had indeed been served on the plaintiff's advocates prior to the hearing date. The...
Source-derived case information.
- Citation
- [2019] KEHC 12230 (KLR)
- Parties
- Plaintiff: Shirin Jiwa; Defendant: The Ismailia Economic Development Society Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 313 of 2013
- Procedural Posture
- Civil Case / Ruling on Application to Set Aside Dismissal of Counterclaim
- Outcome
- Application allowed; previous dismissal order set aside; counterclaim reinstated.
- Legal Topics
- Review of Orders, Setting Aside Dismissal, Affidavit of Service, Reinstatement of Pleadings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Shirin Jiwa
Plaintiff
The Ismailia Economic Development Society Limited
Defendant
Procedural Posture
Civil Case / Ruling on Application to Set Aside Dismissal of Counterclaim
Legal Issues
- 1 Whether the court should review and set aside its order dismissing the defendant's counterclaim due to non-filing of affidavit of service.
- 2 Whether failure by counsel to file the affidavit of service should be visited upon the client.
Ratio Decidendi
The court found that the failure to file the affidavit of service was a mistake by counsel for the defendant, not the defendant itself. The affidavit of service, once produced, demonstrated that the amended defence and counterclaim had indeed been served on the plaintiff's advocates prior to the hearing date. The court held that such a procedural mistake should not prejudice the defendant's right to have its counterclaim heard on the merits. Consequently, the court exercised its discretion to review and set aside its earlier order dismissing the counterclaim and reinstated the same for hearing.
Court Disposition
Application allowed; previous dismissal order set aside; counterclaim reinstated.
Orders
- The orders of 7th December 2018 dismissing the defendant's counterclaim are set aside.
- The defendant's amended counterclaim dated 9th February 2016 is reinstated for hearing.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
CIVIL CASE NO 313 OF 2013
SHIRIN JIWA.......................................PLAINTIFF
VERSUS
THE ISMAILIA ECONOMIC DEVELOPMENT
SOCIETY LIMITED......................DEFENDANT
RULING
Before this Court the Notice of Motion dated 18th December 2018 by which ISMAILIA ECONOMIC DEVELOPMENT SOCIETY LIMITED,(the Defendant/Applicant herein) sought the following Orders:-
“1. THAT the Honourable Court do review, set aside and vacate its order and decree dismissing the Applicant’s Counterclaim herein.
2. THAT this Honourable Court do reinstate the said Counterclaim and consider the same on its merits and grant Judgment as appropriate.
3. THAT the costs of this application be provided for.”
The application was supported by the Affidavit sworn on 18th December 2018 by Mr. ZUL MOHAMED an Advocate of the High Court of Kenya. The application was duly served upon Counsel for the Plaintiff/Respondent but no reply was filed.
The background of the matter is as follows. On 7th December 2018, this Court dismissed the Defendant’s Amended Counterclaim dated 29th February 2016, on grounds that there was no evidence to show that the Amended Defence and Counter-claim had ever been served upon the Plaintiff.
Counsel avers that in fact service was effected on Messrs Khaminwa and KhaminwaAdvocates for the Plaintiff on 7th March 2016, but that due to inadvertence, he omitted to file the Affidavit of Service proving this. The said Affidavit of Service Annexture “ZM2” was attached to the Notice of Motion.
I have perused the said Affidavit of Service dated 8th March 2018. The same indicates that the Amended Defence and Counter-claim were duly served upon Counsel for the Plaintiff, on 7th March 2018, well before the hearing date of 1st October 2018. Had this Affidavit been properly filed then the court would not have dismissed the counter-claim.
Failure to file the Affidavit of Service is a mistake on the part of counsel which mistake ought not be visited upon the Client/Defendant. For this reason I do allow the present application. I set aside my orders of 7th December 2018 and reinstate the Defendant’s Amended counter-claim dated 9th February 2016 for hearing. The Amended Defence and Counter-claim to be served upon the Plaintiff. Hearing will now proceed on 29/10/2019.
Read in open Court.
Mr. Ochieng holding brief for Mr. Mohamed for Applicant.
Dated in Nairobi this …1st.day of August, 2019.
………………………………...
Justice Maureen A. Odero