[2018] KEHC 3086 (KLR)
The court found that the applicant's counsel had provided a satisfactory explanation for the non-attendance that led to the dismissal of the appeal. The delay in filing the application to set aside the dismissal was not inordinate. The court emphasized that justice should not be sacrificed due to counsel's mistake...
Source-derived case information.
- Citation
- [2018] KEHC 3086 (KLR)
- Parties
- Appellant: Tom Oyieyo Oduor; Respondent: Swan Industries Limited
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 48 of 2015
- Procedural Posture
- Civil Appeal / Application to Set Aside Dismissal and Reinstate Appeal
- Outcome
- Application allowed; dismissal order set aside; appeal reinstated; costs awarded to respondent.
- Judges
- TW Cherere
- Legal Topics
- Reinstatement of Appeal, Dismissal for Non Attendance, Mistake of Counsel, Judicial Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Tom Oyieyo Oduor
Appellant
Swan Industries Limited
Respondent
Procedural Posture
Civil Appeal / Application to Set Aside Dismissal and Reinstate Appeal
Legal Issues
- 1 Whether the court should set aside the order dismissing the appeal for non-attendance due to counsel's mistake.
- 2 Whether the delay in filing the application to reinstate the appeal was inordinate.
- 3 Whether the applicant should be penalized for the mistake of counsel.
Ratio Decidendi
The court found that the applicant's counsel had provided a satisfactory explanation for the non-attendance that led to the dismissal of the appeal. The delay in filing the application to set aside the dismissal was not inordinate. The court emphasized that justice should not be sacrificed due to counsel's mistake and that litigants should not be punished for errors attributable to their advocates. The court exercised its discretion to set aside the dismissal order and reinstate the appeal, subject to the applicant paying throw away costs to the respondent.
Court Disposition
Application allowed; dismissal order set aside; appeal reinstated; costs awarded to respondent.
Orders
- The order of dismissal of the appeal issued on 14.2.17 is hereby set aside and the appeal is reinstated for hearing.
- The applicant is to pay Kshs 5,000 to the respondent as throw away costs within 14 days.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU
(CORAM: CHERERE-J)
CIVIL APPEAL NO. 48 OF 2015
TOM OYIEYO ODUOR......................................APPELLANT/APPLICANT
SWAN INDUSTRIES LIMITED..............................................RESPONDENT
RULING
1. By a notice of motion dated 10. 3.17 brought Order 17 rule 4, Order 51 rule 15 of the Civil Procedure Rules and Sections 1A, 1B, and 3A of the Civil Procedure Act, the applicant prays for ordersTHAT: -
1)This court be pleased to set aside or vary orders of dismissal of appeal issued on 14. 2.17 and the appeal be reinstated for hearing
2)Costs be in the cause
2. The application is based on the grounds among others that applicant’s advocate took the date in court but mistakenly heard that the appeal was fixed for hearing on 24. 2.17 and not 14. 2.14. The application is also supported by an affidavit sworn on 10. 3.17 by Rodgers Otieno, advocate for the applicant who reiterates the grounds on the face of the application. He further avers that he attended court on 24. 2.17 for the hearing but discovered that the appeal was listed for hearing on 14. 2.17 and had been dismissed.
3. The application is opposed by way of grounds of opposition dated 8. 8.18 and filed on 27. 8.18 in which it is contended that there was negligence on the part of the applicant’s counsel and that the application offends Article 159 of the Constitution.
4. I have considered the notice of motion in the light of the supporting affidavit and grounds of opposition on record.
5. This application was filed 34 days after the dismissal order. The delay in filing this application is in my view not inordinate.
6. In Patel v EA Cargo Handling Services Ltd [1974] EA 75 at page 76, Sir William Duffus P held:
“The main concern of the court is to do justice to the parties, and the court will not impose conditions on itself to fetter the wide discretion given it by the rules.
7. It should be the court’s last resort to deny a party a chance to be heard on the basis of mistake by counsel. The overriding objective of the rules is to facilitate the just, expeditious, proportionate and affordable resolution of disputes. Judicial authority to do justice to all, vested on this court by Article 159 of the Constitution cannot be said and be seen to be exercised if the court were to punish litigants for mistakes of counsel. The applicant’s counsel has in my considered view explained, to the satisfaction of the court, the circumstances that led to the dismissal of the appeal.
8. Consequently, the notice of motion dated 10. 3.17is allowed in the following terms:-
a)The order of dismissal of the appeal issued on 14. 2.17 is hereby set aside and the appeal be reinstated for hearing
b)The applicant is condemned to pay Kshs5,000/- to the respondent as throw away costs within 14 days from today’s date.
DATED AND DELIVERED IN KISUMU THIS..18th...DAY OF…October...2018
T.W. CHERERE
JUDGE
Delivered in open court in the presence of-
Court Assistant - Felix
For the Petitioner - N/A
For the Respondent - Mrs Barasa/Nyamweya