[2005] KEHC 555 (KLR)
The court found that the applicant's counsel's failure to attend court was satisfactorily explained as an excusable error due to an omission in the cause list. The court exercised its discretion to set aside the dismissal order and reinstate the Chamber Summons, emphasizing that justice is best served by allowing...
Source-derived case information.
- Citation
- [2005] KEHC 555 (KLR)
- Parties
- Plaintiff: TEMA HOME CARES COMPANY LTD; Defendant: DISMAS OPANDE OGOT; Defendant: REMJEWS OMBOKE OGOT; Defendant: KEN OGOLLA NYAMITTA; Defendant: GLACIER CLEANING SERVICES LTD
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 867 of 2005
- Procedural Posture
- Civil Case / Ruling on Application to Set Aside Dismissal and Reinstate Chamber Summons
- Outcome
- Application to set aside dismissal order granted; Chamber Summons reinstated; ex parte orders not reinstated; costs to respondent.
- Judges
- JL Osiemo
- Legal Topics
- Setting Aside Orders, Reinstatement of Suit, Exercise of Discretion, Non Attendance, Ex Parte Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
TEMA HOME CARES COMPANY LTD
Plaintiff
DISMAS OPANDE OGOT
Defendant
REMJEWS OMBOKE OGOT
Defendant
KEN OGOLLA NYAMITTA
Defendant
GLACIER CLEANING SERVICES LTD
Defendant
Procedural Posture
Civil Case / Ruling on Application to Set Aside Dismissal and Reinstate Chamber Summons
Legal Issues
- 1 Whether the dismissal order of 15th September 2005 should be set aside and the Chamber Summons reinstated.
- 2 Whether the applicant's failure to attend court was excusable.
- 3 Whether expired ex parte orders can be reinstated or extended.
Ratio Decidendi
The court found that the applicant's counsel's failure to attend court was satisfactorily explained as an excusable error due to an omission in the cause list. The court exercised its discretion to set aside the dismissal order and reinstate the Chamber Summons, emphasizing that justice is best served by allowing matters to be heard on their merits. However, the court declined to reinstate the expired ex parte orders, agreeing with the respondent that the court cannot extend orders that no longer exist, though it retains the power to reinstate the application itself. Costs were awarded to the respondent.
Court Disposition
Application to set aside dismissal order granted; Chamber Summons reinstated; ex parte orders not reinstated; costs to respondent.
Orders
- The dismissal order issued on 15th September 2005 is set aside.
- The applicant's application dated 12th July 2005 is reinstated.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Civil Case 867 of 2005
TEMA HOME CARES COMPANY LTD………………...….………….….PLAINTIFF
VERSUS
DISMAS OPANDE OGOT…………………………………..……..1ST DEFENDANT
REMJEWS OMBOKE OGOT…………………………………….2ND DEFENDANT
KEN OGOLLA NYAMITTA………………………………....…….3RD DEFENDANT
GLACIER CLEANING SERVICES LTD………….…………….4TH DEFENDANT
RULING
The plaintiff filed this suit again the defendants seeking judgment as prayed in the plaint dated 12th July 2005 and filed the same day.
Simultaneously with the plaint he filed a Chamber Summons under Certificate of Urgency in which he sought injunctive orders against the respondents restraining the respondents from performing certain contrasts as contained in the body of the Chamber Summons dated 12th July 2005.
The plaintiff appeared before Ransley J and obtained ex parte orders and the application was fixed for inter parte hearing on 20th July 2005. On 20th July 2005 the application could not be reached and was stood over to 25th July 2005.
But on that date it was again not heard. The parties agreed by consent to have the matter heard on 15th September 2005 due to summer vacation. On 15th September 2005 when the application came up for hearing, there was no appearance for the applicant and on application by counsel for the respondent the application was dismissed.
This application seeks to set aside that dismissal order of 15th September 2005 and reinstate the Chamber Summons dated 12th July 2005. Mr. Kariuki for the applicant submitted that his failure to appear was due to omission of the application from the cause list of that day. On 14th September 2005 he had sent his clerk to the High Court Civil Registry to collect the cause list for the 15th September 2005 which cause list listed only 4 judges and his application was not listed. On 15th September 2005 he proceeded to the High Court to
make inquiry but he was shown a different cause list which listed all the matters and all the judges and he realized that his application was listed before Makhandia J.
He immediately rushed to Justice Makhandia’s chambers but when he arrived there at about 9. 37 a.m, he discovered that his application had been dismissed for non-attendance. He immediately filed this application the same day seeking orders to set aside the said dismissal order. He submitted that the error is excusable and urged the court to set aside the dismissal order and reinstate the applicant’s application dated 12th July 2005 and to be heard on its merits.
The application is opposed by the respondent. Mr. Okundi for the respondent submitted that the date was taken by consent and the applicant was aware. The applicant has not given reasonable explanation to warrant the court to exercise its discretion in its favour. Further he submitted that the interim orders which were issued and extended on 25th July 2005 cannot be extended, the same having expired.
The main concern of the court in the exercise of its discretion is to do justice between the parties. PATEL VS. E.A. CARGO HANDLING SERVICES LTD [1975] EA 75. The discretion is intended to avoid injustice or hardship resulting from accident inadvertence, or excusable mistake or error, but it is not designed to assist a person who ha deliberately sought whether by evasion or otherwise to obstruct or delay the course of justice. SHAH VS. MBOGO [1967] EA 116. In exercising the discretion the court should consider among other things, the facts and circumstances both prior and subsequent, and all the respective parties. The question as to whether the affected party can reasonably be compensated by costs for any delay occasioned by setting aside the judgment should be considered and it should always be remembered that to deny a person a hearing should be the last resort of the court.
I am satisfied that failure by the applicant’s counsel to appear in court has been explained and is excusable. I am therefore inclined to exercise my discretion in his favour on the issue of whether or not an order which has expired can be extended, I agree with Mr. Okundi that the court cannot extend what does not exist. But the court has power to reinstate the same.
The dismissal order issued by this court on 15th September 2005 is hereby set aside and the applicant’s application dated 12th July 2005 reinstated but I decline to reinstate the ex parte orders which expired on 15th September 2005. Costs to the respondent. Those are the orders of this court.
Delivered and dated at Nairobi this 13th day of October 2005.
J.L.A. OSIEMO
JUDGE