[2005] KEHC 949 (KLR)
The court found that the present application was an abuse of the process of the court because a previous similar application had been dismissed for non-attendance and no application was made to reinstate it. Furthermore, the explanation given for counsel's non-attendance—that counsel attended a subordinate court in...
Source-derived case information.
- Citation
- [2005] KEHC 949 (KLR)
- Parties
- Plaintiff: Tetra Pak Limited; Defendant: Gregory M. Kiilu; Applicant: Francisca Nthambi Kiilu (Administrator of the Estate of Kiilu Kimithi, Deceased); Applicant: John Mutua Kiilu
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 1142 of 2002
- Procedural Posture
- Civil Suit / Ruling on Application to Set Aside Ex Parte Order
- Outcome
- application refused with costs to the Plaintiff/Decree-Holder
- Legal Topics
- Setting Aside Ex Parte Orders, Judicial Discretion, Non Attendance, Abuse of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Tetra Pak Limited
Plaintiff
Gregory M. Kiilu
Defendant
Francisca Nthambi Kiilu (Administrator of the Estate of Kiilu Kimithi, Deceased)
Applicant
John Mutua Kiilu
Applicant
Procedural Posture
Civil Suit / Ruling on Application to Set Aside Ex Parte Order
Legal Issues
- 1 Whether the ex parte order dismissing the Objectors' application for non-attendance should be set aside.
- 2 Whether the failure of counsel to attend court constitutes sufficient cause to reinstate the dismissed application.
- 3 Whether the present application amounts to an abuse of the court process.
Ratio Decidendi
The court found that the present application was an abuse of the process of the court because a previous similar application had been dismissed for non-attendance and no application was made to reinstate it. Furthermore, the explanation given for counsel's non-attendance—that counsel attended a subordinate court in preference to the High Court—was deemed inexcusable, especially since the High Court matter was filed under certificate of urgency. The court held that it would not exercise its discretion in favour of a party whose counsel chose to attend a subordinate court over a High Court matter of urgency. Consequently, there was no sufficient reason to set aside the ex parte order, and...
Court Disposition
application refused with costs to the Plaintiff/Decree-Holder
Orders
- The application to set aside the ex parte order is refused.
- Costs awarded to the Plaintiff/Decree-Holder.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT AT NAIROBI
MILIMANI LAW COURTS
Civil Suit 1142 of 2002
TETRA PAK LIMITED………………………………………..…………..PLAINTIFF
VERSUS
GREGORY M. KIILU………………………………….………………..DEFENDANT
AND
FRANCISCA NTHAMBI KIILU
Administrator of the Estate of Kiilu Kimithi (Deceased)……………..……………………………..1ST OBJECTOR
JOHN MUTUA KIILU………………………………………….……2ND OBJECTOR
R U L I N G
In this application by notice of motion dated 18th October, 2005 the Objectors, FRANCISCA NTHAMBI KIILU (Administrator of the Estate of Kiilu Kimithi, Deceased) and JOHN MUTUA KIILU, seek the main order that the order of court entered ex parte on 18th October, 2005 be set aside. The said order dismissed the Objectors’ application by chamber summons dated 26th August, 2005 for non-attendance. If the present application is allowed the said chamber summons shall be reinstated. The application is made upon the grounds that the failure by the Objectors’ counsel to attend court was excusable and that in any event the mistake of counsel should not be visited upon the Objectors. The Plaintiff/Decree-Holder has opposed the application upon various grounds as set out in the replying affidavit sworn by JOHN KATIKU, learned counsel for the Plaintiff. One of those grounds is that there was a previous similar application by the Objectors, being chamber summons dated 1st March, 2005, which was dismissed for non-attendance on the 26th July, 2005. Another ground for opposing the application is that the non-attendance has not been satisfactorily explained.
I have considered the submissions of the learned counsels appearing. The order sought to be set aside was made ex parte. Rule 17 of Order 50 of the Civil Procedure Rules gives the court an unfettered discretion to set aside such order. Needless to say, it is a judicial discretion which must be exercised judicially. The present application was brought after the previous similar application by chamber summons dated 1st March, 2005 was dismissed for non-attendance. No application was brought to reinstate that previous application. For that reason, just as I ruled on 18th October 2005, the present application is an abuse of the process of the court. That is a sufficient reason to refuse the application. Even on merit, the reason given by counsel for failure to attend court is that the counsel had attended a subordinate court in Kiambu in preference to attending the application before this court which had been filed under certificate of urgency. That was in excusable. The High Court always takes precedence over the subordinate courts. The court will not exercise its discretion in favour of a party whose counsel chooses to go before a subordinate court rather than attend a matter before the High Court filed under certificate of urgency. Nothing, therefore, has been placed before the court as would enable it to exercise its discretion in favour of the Objectors.
For the above reasons the present application is hereby refused with costs to the Plaintiff/Decree-Holder. Order accordingly.
DATED AND SIGNED AT NAIROBI THIS 24TH DAY OF NOVEMBER, 2005. H.P.G. WAWERU
JUDGE