Idow Trading Company Limited v Mohamed Jimale & 2 others [2015] KEELC 786 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiff's non-attendance on 17th February 2014 was an excusable mistake justifying reinstatement
The court was content that it was a suitable case to exercise its discretion to set aside the dismissal, holding the advocate's traffic delay was an excusable mistake and the Defendants would suffer no serious prejudice.
The court applied Order 12 Rule 7 and the Shah v Mbogo principles, finding the advocate's failure to attend was caused by a traffic snarl-up from an accident, not a deliberate attempt to delay justice. The client had attended court but stepped out. The 2nd Defendant showed no serious prejudice, and any prejudice could be compensated in costs. Litigants should have their day in court and suits determined on merit rather than on technicalities.
Whether the 2nd Defendant's grounds of opposition and the alleged inordinate delay in filing the application justified refusal
The court held the 2nd Defendant's grounds would not justify refusal and that no serious prejudice or miscarriage of justice would result from allowing the application.
Although the 2nd Defendant relied on Ivita v Kyumbu on inordinate delay and argued the Plaintiff had lost interest, the court found the delay in filing the application was not fatal, the Defendants did not demonstrate serious prejudice, and the 2nd Defendant himself had sought costs rather than resisting reinstatement on substantive grounds.
Legal principles established
#- The discretion to set aside a dismissal entered in default of attendance exists to avoid injustice from accident, inadvertence or excusable mistake, not to assist deliberate obstruction or delay.
- Unless there is fraud or intention to overreach, no error or default cannot be put right by payment of costs; the mistake of counsel should not ordinarily be visited on the client.
- The power to set aside a judgment entered in default of attendance is discretionary, with the court's main concern being to do justice to the parties on such terms as may be just.
Court orders
#- 1.The orders made on 17th February 2014 dismissing the Plaintiff's suit be and are hereby set aside
- 2.An order reinstating the suit be and is hereby granted
- 3.The Plaintiff to pay the 2nd Defendant the costs of the application
- Jurisdiction invoked
- Sections 1A, 1B and 3A of the Civil Procedure Act; Order 12 Rule 7 and Order 51 Rule (1) of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Idow Trading Company Limited v Mohamed Jimale & 2 others [2015] KEELC 786 (KLR)", Case Analysis (2015). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/786/eng@2015-05-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.