[2013] KEELC 124 (KLR)
The court found that the reasons advanced by the applicant's counsel for non-attendance were not persuasive, as counsel was aware of the court date and failed to ensure reliable representation. However, the court exercised its discretion to set aside the dismissal order solely on the basis that a litigant is...
Source-derived case information.
- Citation
- [2013] KEELC 124 (KLR)
- Parties
- Plaintiff: Supinder Singh Sagoo; Defendant: Kenya Commercial Bank
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 83 of 2012
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Set Aside Dismissal for Non Attendance
- Outcome
- application allowed with conditions
- Legal Topics
- Setting Aside Orders, Non Attendance, Reinstatement of Suit, Advocate Conduct
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Supinder Singh Sagoo
Plaintiff
Kenya Commercial Bank
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Dismissal for Non Attendance
Legal Issues
- 1 Whether the court should set aside its order dismissing the plaintiff's application for non-attendance.
- 2 Whether the reasons for counsel's absence constitute sufficient cause to reinstate the dismissed application.
- 3 Whether the applicant should be penalized for the mistakes of counsel.
Ratio Decidendi
The court found that the reasons advanced by the applicant's counsel for non-attendance were not persuasive, as counsel was aware of the court date and failed to ensure reliable representation. However, the court exercised its discretion to set aside the dismissal order solely on the basis that a litigant is entitled to a hearing and should not be unduly punished for the mistakes of counsel. The application was allowed, but the respondent was awarded thrown away costs of Kshs. 5,000 to be paid within seven days, failing which the dismissal order would remain in force.
Court Disposition
application allowed with conditions
Orders
- The order of dismissal for non-attendance is set aside and the application reinstated.
- The applicant shall pay the respondent thrown away costs of Kshs. 5,000 within seven days.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT OF KENYA AT ELDORET
E&L NO. 83 OF 2012
Formerly HCC 167 of 2001
SUPINDER SINGH SAGOO...........................................................PLAINTIFF
VS
KENYA COMMERCIAL BANK.....................................................DEFENDANT
RULING
The application before me is the application dated 23 April 2013 filed by the plaintiff. It is an application brought under the provisions of Sections 1A, 1B, 3 and 3A of the Civil Procedure Act. It prays for the setting aside of the order of this court issued on 22 April 2013 whereby the plaintiff's application dated 22/4/2002 was dismissed for non-attendance on the part of the applicant. This application is supported by the affidavits J.C.Tarus Advocate and Betty Toroitich Advocate. The reasons given for non-attendance are inter alia that on the material day that the application dated 22 April 2003 was dismissed, Miss. Tarus, counsel for the applicant, had other matters in other courts and she requested a colleague to hold her brief. However, her colleague had stepped out briefly when the matter was called out. The colleague is Ms. Toroitich. Ms. Toroitich on her part has explained in her affidavit that she got instructions to hold brief for Miss. Tarus but she also had a criminal matter before the Deputy Registrar, being Eldoret Criminal Case No. 96 of 2013. She had gone to attend to the said matter when this suit was called out.
The application is opposed by Grounds of Opposition filed by the Respondent. Inter alia is averred that there was inordinate delay in prosecuting the application dated 22 April 2002 which is the application that was dismissed for non-attendance. It is also averred that the applicant is represented by two firms of advocates, and neither was there representation on the part of the second firm on the material day. It is also averred that the application that was dismissed seeks to amend the plaint to bring in a counterclaim but that counterclaim is now time barred.
Miss. Tarus, urged me to allow this application and have the dismissed application re-instated. She stated that her absence was not intentional and that her mistake ought not to be visited upon her client. She referred me to the case of Tema Home Cares Limited vs Dismas Opande Ogot & 3 Others (2005) eKLR. On the other hand, Mr. Kiplimo, counsel holding brief for Mrs. J.C.Chumba for the respondent urged me to dismiss the application. He stated that the applicants have had no interest in the application as the same was filed in 2003 and it remained unprosecuted even on the day that it was dismissed. He stated that there has been great delay. He distinguished the facts herein from the case of Tema Home Cares Limited as in that case, counsel had thought that the matter would not be in court as it was not cause listed for the day. In this matter, he stated that Miss. Tarus was aware that the matter was in court and simply failed to be present.
I have considered the application. I have considered the reasons given by Miss. Tarus as to why she was not present in court when the matter was called out. I am not persuaded that the reasons given by Miss. Tarus are reasons that would persuade me to exercise my discretion to set aside the order of dismissal. Miss. Tarus knew that the matter was in court. She opted to attend to other matters and left this one in the hands of another counsel who also had other matters before another court. She ought to have ensured that the advocate she had given the responsibility of holding her brief was reliable. The conduct of Ms. Toroitich is also not excusable. She was given a responsibility and if she knew she had other matters elsewhere, she ought to have declined the brief or at the very least delegated to another counsel when she went to attend to the criminal matter before the Deputy Registrar. It is abhorrable practice to fail to attend to a matter in which you have instructions. I am not persuaded that a failure by counsel to attend to a matter, because such counsel was also attending to another matter, is good reason to set aside an order of dismissal for non-attendance.
However, the applicant is entitled to a hearing and probably I ought not to visit upon the litigant the faults of her counsel in not attending to the matter. It is for this reason only, that a party is entitled to a hearing, that I allow this application.
The matter was dismissed because of the fault of counsel, who was rather careless I must say, in not being too keen on the matter. I allow the application and given the circumstances surrounding the dismissal, I award the respondent thrown away costs of Kshs. 5,000/=, which costs must be paid within the next seven (7) days and in default, the order for dismissal shall remain in force.
It is so ordered.
DATED, SIGNED AND DELIVERED THIS 10TH DAY OF JUNE 2013
JUSTICE MUNYAO SILA
ENVIRONMENT AND LAND COURT AT ELDORET
Read in open Court
In the Presence of:-
Mr. Ngumbi holding brief for Miss Tarus for the defendant/applicant
Mr. Mwinamo holding brief for Mrs Chumba for the Plaintiff/respondent