[2015] KEHC 5219 (KLR)
The court found that the dismissal of the appeal was the result of a simple mistake by the advocates who appeared without sufficient instructions. The actual appellant was not at fault, and it would be unjust to allow the mistake of the advocate to prejudice the appellant's right to be heard. The court held that the...
Source-derived case information.
- Citation
- [2015] KEHC 5219 (KLR)
- Parties
- Appellant: Woche Hussein Hirbo; Appellant: Daro Chato; Respondent: Rose Khausi
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 24 of 2012
- Procedural Posture
- Civil Appeal / Ruling on Application for Review of Dismissal Order
- Outcome
- application allowed; dismissal order reviewed and set aside; appeal reinstated; costs to respondent
- Judges
- DA Onyancha
- Legal Topics
- Review of Court Orders, Dismissal for Want of Prosecution, Mistake of Advocate, Reinstatement of Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Woche Hussein Hirbo
Appellant
Daro Chato
Appellant
Rose Khausi
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Review of Dismissal Order
Legal Issues
- 1 Whether the court should review and set aside its order dismissing the appeal for want of prosecution due to a mistake by the appellant's advocate.
- 2 Whether the mistake of an advocate should be visited upon the client in the circumstances of this case.
Ratio Decidendi
The court found that the dismissal of the appeal was the result of a simple mistake by the advocates who appeared without sufficient instructions. The actual appellant was not at fault, and it would be unjust to allow the mistake of the advocate to prejudice the appellant's right to be heard. The court held that the interests of fairness and natural justice required that the order of dismissal be reviewed and set aside, and the appeal reinstated. Any prejudice to the respondent could be compensated by an award of costs.
Court Disposition
application allowed; dismissal order reviewed and set aside; appeal reinstated; costs to respondent
Orders
- The order of 21st November, 2013 dismissing the appeal is reviewed and set aside.
- The appeal is reinstated.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL APPEAL NUMBER 24 OF 2012
WOCHE HUSSEIN HIRBO..........................………………..…………… 1ST APPELLANT
DARO CHATO. ………………………….…..........................………….. 2ND APPELLANT
VERSUS
ROSE KHAUSI. ………………………………..........................……….. 3RD APPELLANT
R U L I N G
The application before the court is the Notice of Motion dated 31st January, 2014. It seeks a review of this court’s order dated the 21st November, 2013 dismissing this appeal for want of prosecution.
The facts as are on the record are that this appeal was originally filed by the appellant who went through the process of preparing the appeal for a hearing and fixed the same on 21st January, 2013 for directions. On this date Mr. Oloo who represented the Appellant sent a Mr. Odhiambo to court to hold his brief. The Respondent who was represented by the Mr. Kaburu sent a Mr. Mutua to hold his brief.
When the suit was called out Mr. Mutua stated that the Appeal was for directions but he did not have sufficient information to assist the court to take directions. He sought for leave to and was allowed by the court to cease acting on behalf of Mr. Kaburu for the Respondent. He should have said that Kaburu was acting for the Appellant but he did not.
That is when Mr. Odhiambo for Oloo seized that dramatic moment and asked the court to dismiss the appeal since the Appellant’s advocate was absent and the counsel he had sent to hold his brief had walked out for lack of sufficient instructions. The court in an earlier order of .10th October, 2013 had directed that the appeal would be dismissed if the Appellant did not show up in court and show sufficient interest to proceed with directions on 21st November, 2013.
The tragedy however, was that Mr. Odhiambo holding brief for Mr. Oloo, was actually representing the Appellant and not Respondent and seeking to have the appeal dismissed, was against his principal’s client’s interest.
Mr. Oloo seeks review of the order of dismissal because, the request made on his behalf by Mr. Odhiambo was inadvertent, misinformed and strange under the circumstances it was made. That it was against common sense to seek for the order of dismissal against his own client and the whole conduct was simply a mistake which needs correction. That reinstatement of the appeal through review will not prejudice the respondent and on the other hand, it will facilitate the suit to be heard inter parties thus giving both parties opportunity to present their cases.
On the other hand Mr. Kaburu opposed the application. He said that the delay in approaching the court to correct a mistake caused solely by the Applicant was 81 days and therefore inordinate. That the applicant/Appellant is solely to blame and should bear the deed that he himself was responsible of. That Appellant was eager to dismiss the other party’s suit without mercy and should now suffer the consequences of his attitude and conduct.
I have considered the facts. I am satisfied that the dismissal of the appeal on 21st November, 2013 was a simple mistake which arose from lack of carrying sufficient information and instructions by both advocates who acted on instructions from the advocates who had sent them.
The Appellant/Applicant has shown sufficient interest in the appeal. There is no evidence that the actual Appellant had committed any fault in respect to the conduct of the parties on that particular day. This means that the fault or mistake lay purely in the hands of the advocate and in an occasion like this, the mistake of the advocate should not be allowed to prejudice the party the advocate represented.
Furthermore, the mistake that brought this misfortune, can adequately be compensated in costs. Also the Respondent will not suffer much prejudice and there is a reasonable ground or cause for the court to act in the interest of fairness and natural justice.
In the circumstances, I allow this application by reviewing the courts order of 21st November, 2013. The order is hereby reviewed and set aside. The appeal is hereby reinstated. Costs are to the Respondent. Orders are made accordingly.
Dated and delivered at Nairobi this 22nd day of April, 2015.
………………………………………
D A ONYANCHA
JUDGE