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ELCAllowedNot stated in the judgment· [2015] KEELC 786 (KLR)

Idow Trading Company Limited v Mohamed Jimale & 2 others [2015] KEELC 786 (KLR)

High Court of Kenya
15 May 2015
1,684 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This was a Notice of Motion dated 10th March 2014 under Sections 1A, 1B and 3A of the Civil Procedure Act and Order 12 Rule 7 and Order 51 Rule (1) of the Civil Procedure Rules, seeking to set aside orders made on 17th February 2014 dismissing the Plaintiff's suit for non-attendance, and to reinstate the suit. The Plaintiff's advocate, Moses Munoko, deposed that he was delayed by a traffic snarl-up caused by an accident, arriving at about 9:25am when his matter, listed first on the cause list, had already been called out and dismissed at the instance of the 2nd Defendant; the Plaintiff himself had stepped out to look for counsel. The 2nd Defendant opposed, arguing the Plaintiff had lost interest, that litigation must come to an end given the suit was filed in 2008, that no evidence of the accident was annexed, and that there was inordinate delay of about a month and a half in filing the application, relying on Ivita v Kyumbu. The Plaintiff relied on Richard Ncharpi Leiyagu and Belinda Murai, urging that mistakes of counsel should not be visited on the client and suits should be determined on merit. Applying Pithon Waweru Maina, Shah v Mbogo and Philip Chemwolo v Augustine Kubede, the court held the non-attendance was an excusable mistake rather than a deliberate attempt to delay justice, and that the 2nd Defendant had shown no serious prejudice capable of being compensated in costs. The court set aside the dismissal orders, reinstated the suit, and ordered the Plaintiff to pay the 2nd Defendant the costs of the application.

Key legal issues

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01

Whether the Plaintiff's non-attendance on 17th February 2014 was an excusable mistake justifying reinstatement

Holding

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.

Reasoning

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.

p. 3
02

Whether the 2nd Defendant's grounds of opposition and the alleged inordinate delay in filing the application justified refusal

Holding

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.

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.The orders made on 17th February 2014 dismissing the Plaintiff's suit be and are hereby set aside
  2. 2.An order reinstating the suit be and is hereby granted
  3. 3.The Plaintiff to pay the 2nd Defendant the costs of the application

Authorities

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Legislation

  • Civil Procedure ActSection 1A
  • Civil Procedure ActSection 1B
  • Civil Procedure ActSection 3A
  • Civil Procedure RulesOrder 12 Rule 7
  • Civil Procedure RulesOrder 12 Rule 3
  • Civil Procedure RulesOrder 51 Rule (1)

Cases cited (6)

  • Richard Ncharpi Leiyagu vs Independent Electoral Boundaries Commission & 20 others
    CA No. 18 of 2013
  • Belinda Murai & Others vs Amoi Wainaina
    (1975) LLR 2782 (ALL)
  • Ivita vs Kyumbu
    (1984) KLR 411
  • Pithon Waweru Maina vs Thuka Mugiria
    (1982-1988) 1KAR 171
  • Shah v. Mbogo
    [1967] EA 116
  • Philip Chemwolo & Another vs Augustine Kubede
    (1982-1988) KAR 1036
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

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Practical implications

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Frequently asked questions

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Cite this brief

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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.