[2007] KEHC 3579 (KLR)

[2007] KEHC 3579 (KLR)

The court found that, although the explanation for non-attendance by the plaintiff's counsel was not entirely satisfactory, the record disclosed a genuine intention by the plaintiff to prosecute the suit. The court held that denying the plaintiff an opportunity to be heard on the merits due to a single lapse would...

Source-derived case information.

Citation
[2007] KEHC 3579 (KLR)
Parties
Plaintiff: Transami (K) Limited; Defendant: Sokhi International (K) Limited
Court
High Court
Court Station
High Court at Nairobi (Milimani Law Courts)
Jurisdiction
Kenya
Judgment Date
9 November 2007
Case Number
Civil Case 622 of 1995
Procedural Posture
Civil Case / Application to Set Aside Dismissal and Reinstate Suit
Outcome
Application allowed; dismissal order set aside; suit reinstated for hearing.
Legal Topics
Setting Aside Dismissal, Reinstatement of Suit, Judicial Discretion, Non Attendance at Hearing
Source Language
english
Civil Procedure Setting Aside Dismissal Reinstatement of Suit Judicial Discretion Non Attendance at Hearing

Source-derived case record

Summary, issues, holding and outcome

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Parties

Transami (K) Limited

Plaintiff

Sokhi International (K) Limited

Defendant

Procedural Posture

Civil Case / Application to Set Aside Dismissal and Reinstate Suit

Legal Issues

  1. 1 Whether the court should set aside the dismissal of the suit for non-attendance and reinstate the suit for hearing.
  2. 2 Whether the explanation for non-attendance by the plaintiff's counsel is sufficient to warrant exercise of the court's discretion.

Ratio Decidendi

The court found that, although the explanation for non-attendance by the plaintiff's counsel was not entirely satisfactory, the record disclosed a genuine intention by the plaintiff to prosecute the suit. The court held that denying the plaintiff an opportunity to be heard on the merits due to a single lapse would occasion greater injustice than the inconvenience to the defendant. Accordingly, the court exercised its discretion to set aside the dismissal and reinstate the suit, emphasizing the principle that cases should be determined on their merits whenever possible.

Court Disposition

Application allowed; dismissal order set aside; suit reinstated for hearing.

Orders

  • The order of dismissal of 9th May, 2006 is set aside.
  • The suit is reinstated for hearing.