[2015] KEHC 269 (KLR)
The court found that the reasons advanced by the 2nd respondent for non-attendance—namely, the failure of his secretary and court clerk to diarize the application—were plausible and not unique in legal practice. The court emphasized that its discretion should be exercised to allow parties to have their cases heard...
Source-derived case information.
- Citation
- [2015] KEHC 269 (KLR)
- Parties
- Applicant: Shop One Hundred Limited; Defendant: Kulisam Kassam; Defendant: Jason Ondabu t/a Ondabu & Company Advocates; Defendant: Zacharia Baraza t/a Siuma Traders
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 398 of 2012
- Procedural Posture
- Civil Appeal / Application to Set Aside Dismissal Order and Reinstate Application
- Outcome
- Application to set aside dismissal order allowed; application reinstated.
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Setting Aside Orders, Reinstatement of Application, Discretion of Court
- 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
Shop One Hundred Limited
Applicant
Kulisam Kassam
Defendant
Jason Ondabu t/a Ondabu & Company Advocates
Defendant
Zacharia Baraza t/a Siuma Traders
Defendant
Procedural Posture
Civil Appeal / Application to Set Aside Dismissal Order and Reinstate Application
Legal Issues
- 1 Whether the court should set aside the dismissal order for want of prosecution and reinstate the 2nd respondent's application.
- 2 Whether the reasons for non-attendance by the 2nd respondent constitute sufficient cause to warrant reinstatement.
- 3 Whether the discretion of the court should be exercised in favour of the 2nd respondent.
Ratio Decidendi
The court found that the reasons advanced by the 2nd respondent for non-attendance—namely, the failure of his secretary and court clerk to diarize the application—were plausible and not unique in legal practice. The court emphasized that its discretion should be exercised to allow parties to have their cases heard on the merits, unless there is evidence of fraud or intention to overreach. The court relied on the principle that procedural errors should not bar substantive justice, especially where the error can be compensated by costs. Consequently, the court set aside the dismissal order and reinstated the 2nd respondent's application, ordering the 2nd respondent to pay the costs...
Court Disposition
Application to set aside dismissal order allowed; application reinstated.
Orders
- The dismissal order is set aside as prayed.
- The application dated 5th February, 2013 shall be listed for hearing within the next 45 days, failing which it will stand dismissed with costs.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL APPEAL NO. 398 OF 2012
SHOP ONE HUNDRED LIMITED .............................……………APPLICANT
VERSUS
KULISAM KASSAM……………..……........………………1ST DEFENDANT
JASON ONDABU t/a ONDABU &
COMPANY ADVOCATES…………….............……………2ND DEFENDANT
ZACHARIA BARAZA t/a
SIUMA TRADERS …….....………..…..........……………….3RD DEFENDANT
RULING
The 2nd respondent filed an application by way of Notice of Motion dated 5th February, 2015 for orders that there be a stay of execution of orders made on 20th December, 2012 and that an order be issued compelling the 1st respondent to allow the applicant back into the suit premises.
There was also a prayer that the said order of 20th December, 2012 be reviewed, set aside or varied. That application was set down for hearing on 5th June, 2015. However, on that date the advocate for the 2nd respondent did not appear and Ougo J dismissed the application for want of prosecution.
The 2nd respondent has now moved the court for setting aside of the dismissal order and reinstate the application for hearing. The application is opposed and parties have filed written submissions. I have considered the material before me. The reason given by 2nd respondent is that his secretary and court clerk forgot to diarize the application leading to its dismissal for non attendance.
It is submitted the 2nd Respondent having obtained orders for stay of execution deliberately stayed away to enjoy the said order without due regard of their rights of the other parties. He is also accused of delaying in applying to set aside the dismissal order.
Ordinarily the courts endevour to maintain a suit rather than dismissing the same so that any party has his or her day in court. The non attendance of the 2nd respondent and the reasons given therefor are not unique. Indeed the Court of Appeal in Nyeri Civil Appeal No. 295 of 2009 Harrison Wanjohi Versus Felistus Wairimu and Another had this to say,
“Bladders 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 merit. I think the broad equity approach to this matter is that unless there is fraud or intention to overreach, there is no error or default that cannot be put right by payment of costs. The court has often said exist for the purpose of deciding the rights of parties and not the purpose of imposing discipline.”
The order sought by the 2nd respondent is dependent on the discretion of this court. The reasons given are plausible and often occur in the chambers of legal practitioners. I have noted the submission by he learned counsel Mr. Shah that the premises have already been given out to another tenant. That is a submission that belongs to the hearing of the main application. For now I am persuaded that the dismissal order should be set aside as prayed. It is so ordered.
The 2nd respondent shall pay the costs of the applicant and the 1st and 3rd respondents occasioned by this application. The application dated 5th February, 2013 shall be listed for hearing within the next 45 days failure of which it will stand dismissed with costs.
Dated and delivered at Nairobi this 3rd day of December, 2015.
A.MBOGHOLI MSAGHA
JUDGE