Esther Atieno Ababu v Samuel Githegi Kinyanjui & another [2016] KEELC 623 (KLR)
The bottom line
#Kenya's High Court reinstated a suit dismissed for delay because the plaintiff's lawyer — not the plaintiff — caused the mistake.
What this practically means
#Executive summary
#Key legal issues
#Whether the dismissal of the plaintiff's suit for want of prosecution should be set aside
The dismissal was set aside and the suit reinstated because it resulted from the advocate's failure to serve the plaintiff with the application to cease acting and failure to attend court
The court found the delay in prosecution was caused by the plaintiff's advocate, A.G.A. Etyang, who failed to appear on the dismissal date and failed to serve the plaintiff with the application to cease acting filed on 13 October 2015. Applying the established discretion to rectify mistakes in the interests of justice, the court held the advocate's mistake ought not be visited on the plaintiff and exercised its discretion to set aside the ex parte dismissal.
Whether the delay of about four months in moving the court was fatal
Though the delay was inordinate, it was satisfactorily explained by the plaintiff's lack of knowledge of the dismissal
The suit was dismissed on 28 January 2016 and the application filed on 23 May 2016. The court acknowledged this constituted inordinate delay but accepted the plaintiff's explanation that she only learned of the dismissal on 18 May 2016 when her new advocates checked the court file, having previously been assured by her former advocates that all was in place and a hearing date was awaited.
Legal principles established
#- A court's discretion to set aside an ex parte judgment or order is intended to avoid injustice or hardship resulting from accident, inadvertence or mistake, not to assist a party who deliberately obstructs or delays justice
- A mistake by counsel should not be visited upon the client where the interests of justice so dictate
Court orders
#- 1.Setting aside the orders made exparte dismissing the Plaintiff's suit and all other consequential orders thereto
- 2.Reinstating the Plaintiff's suit to proceed from where it had reached
- 3.Costs in the cause
- Jurisdiction invoked
- Inherent discretion of the court to set aside ex parte orders/dismissal for want of prosecution (not expressly pinned to a constitutional or statutory provision in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Esther Atieno Ababu v Samuel Githegi Kinyanjui & another [2016] KEELC 623 (KLR)", Case Analysis (2016). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/623/eng@2016-08-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.