[2004] KEHC 2006 (KLR)
The court found that the orders of 8th March, 2001 were granted due to the negligence of the defendant's previous counsel, who failed to file a defence and other necessary documents. Applying the principle that mistakes of counsel should not be visited on the client, and upon reviewing the proposed defence which...
Source-derived case information.
- Citation
- [2004] KEHC 2006 (KLR)
- Parties
- Plaintiff: Stephen Kiprotich Seimo; Defendant: Alexander K. Ngetich
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 22 of 2001
- Procedural Posture
- Civil Suit / Ruling on Application to Set Aside Orders and Consolidate Suits
- Outcome
- application granted
- Legal Topics
- Setting Aside Orders, Consolidation of Suits, Mistake of Counsel, Triable Issues, Stay of Execution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Stephen Kiprotich Seimo
Plaintiff
Alexander K. Ngetich
Defendant
Procedural Posture
Civil Suit / Ruling on Application to Set Aside Orders and Consolidate Suits
Legal Issues
- 1 Whether the orders made on 8th March, 2001 should be set aside due to the defendant's previous advocate's failure to file a defence and other documents.
- 2 Whether the suits Nakuru Civil Suit No. 22 of 2001 and Nakuru Civil Suit No. 502 of 1999 should be consolidated due to common questions of law and fact.
- 3 Whether the execution of the orders should be stayed pending determination of the application.
Ratio Decidendi
The court found that the orders of 8th March, 2001 were granted due to the negligence of the defendant's previous counsel, who failed to file a defence and other necessary documents. Applying the principle that mistakes of counsel should not be visited on the client, and upon reviewing the proposed defence which raised important triable issues, the court held that it would be unjust to deny the defendant an opportunity to be heard. Furthermore, the court determined that both Nakuru Civil Suit No. 22 of 2001 and Nakuru Civil Suit No. 502 of 1999 involved common questions of law and fact, justifying their consolidation. The court concluded that the interests of justice required setting...
Court Disposition
application granted
Orders
- The application dated 7th June, 2002 is granted.
- The orders of the court made on 8th March, 2001 and all consequential orders are set aside.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAKURU CIVIL SUIT NO. 22 OF 2001
STEPHEN KIPROTICH SEIMO………………………………..PLAINTIFF
VERSUS
ALEXANDER K. NGETICH………………………………...DEFENDANT
RULING
The application has been brought through chamber summons under Orders XXXIX R. 4 & 9, IX B Rules 8, XXI R. 22, IX R. 1 & 2 of the Civil Procedure Rules and Sec. 3 and 3
(a) of the Civil Procedure Act. The application seeks the following orders:
(a) That pending the hearing and disposal of this application, execution of the orders of the Court made on 8th March, 2001 and all consequential orders be stayed.
(b) That the orders of the Court made on 8th March, 2001 and all other orders subsequent thereto be set aside on such terms as the Court shall find expedient to impose.
(c) That Nakuru Civil Suit No. 22 of 2001 and Nakuru Civil Suit No. 502 of 1999 be consolidated as a common question of law and fact exists in both suits.
The grounds of the application are the following:
(i) The Plaintiff in this Suit and the plaintiff in Nakuru HCCC No. 502 of 1999 are trying to use the Court process to swindle the applicant of a piece of land rightfully occupied by him.
(ii) That the said swindle may not be discernible unless both suits are heard together.
(iii) That the applicant’s previous advocate failed to file a replying affidavit and grounds of opposition and it would not be fair to punish the applicant for his Advocate’s incompetence.
(iv) That the applicant has a well merited defence as can be discerned from his affidavit and proposed defence.
(v) That the application dated 26th January, 2001 tended to dispose of the suit without trial and the defendant is thereby greatly prejudiced.
(vi) That the Plaintiff is in the process of having the defendant evicted from the premises.
This Court has carefully perused the detailed submissions by both Counsels on record. From the above, it is apparent that the orders dated 8th March, 2001 were granted to the plaintiff due to the negligence of the Counsel for the defendant. The latter had failed to file the:
- defence, grounds of opposition or a replying affidavit.
It is a settled principle of law that the mistakes of a Counsel should not be visited on his client. Secondly, this Court has carefully perused the attached defence. It is apparent that the same has raised important triable issues. In addition, it is apparent that the subject matter is land which is a precious commodity in Kenyan society.
Due to the above, it is crucial that each party should be granted a chance to canvass all the issues exhaustively. Apart from the above, it is apparent that the plaintiff/respondent has also been sued in Nakuru HCCC No. 502 of 1999. The applicant’s Counsel has ably demonstrated the relationship between the two cases.
Having gone through the two Plaints carefully, I have confirmed the relationship between the two cases. Given the above, it would be in the interest of all the parties if the said cases are consolidated and dealt with simultaneously. In view of the above, I hereby grant the application dated 7th June, 2002. Costs to the applicant in any event.
MUGA APONDI
JUDGE
Ruling read, signed and delivered in open Court in the presence of Ms Kerage for Omae for applicant.
MUGA APONDI
JUDGE
24TH FEBRUARY, 2004