[2018] KEELC 1882 (KLR)
The court found that the plaintiff's failure to attend court was due to the advocate's omission in failing to inform the plaintiff of the hearing date. The court held that the mistake of counsel should not be visited upon the client, especially where the client was not personally at fault. The court exercised its...
Source-derived case information.
- Citation
- [2018] KEELC 1882 (KLR)
- Parties
- Plaintiff: Sweetland Company Limited; Plaintiff: Hillary Kiboinett; Defendant: Transnational Bank Limited
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 280 of 2016
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Set Aside Dismissal and Reinstate Suit
- Outcome
- application allowed; suit reinstated
- Judges
- A Ombwayo
- Legal Topics
- Reinstatement of Suit, Dismissal for Non Attendance, Mistake of Counsel, Hearing Notice Service
- 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
Sweetland Company Limited
Plaintiff
Hillary Kiboinett
Plaintiff
Transnational Bank Limited
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Dismissal and Reinstate Suit
Legal Issues
- 1 Whether the suit should be reinstated after dismissal for non-attendance.
- 2 Whether the mistake of counsel in failing to inform the plaintiff of the hearing date should be visited upon the client.
Ratio Decidendi
The court found that the plaintiff's failure to attend court was due to the advocate's omission in failing to inform the plaintiff of the hearing date. The court held that the mistake of counsel should not be visited upon the client, especially where the client was not personally at fault. The court exercised its discretion to set aside the dismissal and reinstate the suit, finding that the applicant had demonstrated sufficient cause for non-attendance. The court further ordered that the costs of the application be borne by the plaintiff.
Court Disposition
application allowed; suit reinstated
Orders
- The orders made on 7.12.2017 dismissing the suit are reviewed and set aside.
- The suit is reinstated with interim orders.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT OF KENYA
AT ELDORET
E & L CASE NO. 280 OF 2016
SWEETLAND COMPANY LIMITED.........1ST PLAINTIFF/APLICANT
HILLARY KIBOINETT..............................2ND PLAINTIFF/APPLICANT
VERSUS
TRANSNATIONAL BANK LIMITED......DEFENDANT/RESPONDENT
RULING
On the 7. 12. 2017, the suit herein was slated for hearing. The plaintiff’s lawyer was in court but the plaintiff was absent. The plaintiff’s lawyer sought for 7 days to file witness statements despite the fact that the law requires the plaintiff to file the suit with witness statements and documents. Technically, the plaintiff’s advocate was applying for adjournment. The matter was adjourned to 1. 00 p.m. and the plaintiff’s advocate was given time to contact the client. At 2. 00 p.m, the plaintiff had not turned up and therefore, the matter was dismissed for non-attendance. The plaintiff had been served with a hearing notice in August 2017.
The plaintiff took 6 days to make an application dated 13. 12. 2017 to set aside orders made on 7. 3.2017 dismissing the suit and effectively applied for reinstatement of the suit. This is the application before me for determination. The application is based on grounds that the applicant had no information that the suit had been slated for hearing on 7. 12. 2017.
It is said that the applicant runs business in Nairobi and Kitengela and hence could not be reached. He claims to have not been aware of the hearing date. The applicant states that he has been condemned unheard. The main reason for not appearing in court as scheduled was that the plaintiff was not informed by his advocate. I am convinced that the failure by the plaintiff to attend court was caused by his advocate who failed to inform him that the matter was slated for hearing on 7. 12. 2017. This is a case where mistake of counsel should not be visited upon the client.
I therefore do allow the application and do hereby review the orders made on 7. 12. 2018. The suit herein is reinstated with the interim orders. Costs of the application to be borne by the plaintiff in any event. Orders accordingly.
Dated, signed and delivered at Eldoret this 27th day of July, 2018.
A. OMBWAYO
JUDGE