City Council of Nairobi v Simon Kimondo Mubea [2016] KEELC 1116 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Power to set aside an ex parte order of dismissal
The court has power under Order 51 Rule 15 of the Civil Procedure Rules and section 3A of the Civil Procedure Act to set aside an order made ex parte, to be exercised judiciously in the interest of justice
The dismissal of 29th May 2015 was made ex parte in the absence of both parties after a notice to show cause. Order 51 Rule 15 confers power to set aside ex parte orders and section 3A confers inherent power to make orders necessary for the ends of justice. Being discretionary, the power must be exercised judiciously, not capriciously, with justice to the parties as the aim.
Sufficient cause and explanation for delay
The plaintiff established sufficient cause: counsel had four other matters in different courts on the hearing date, and the suit had been stayed since 2007 pending determination of HCCC No. 2012 of 1999
Counsel's affidavit explained that the notice to show cause was served only a day before the hearing date when she had four other matters, and by the time she appeared before Angote J. the suit had already been dismissed. The suit had also been stayed by Angawa J. on 29th May 2007 pending HCCC No. 2012 of 1999, which remained undetermined, so the plaintiff could not have prosecuted it.
Defendant's grounds of opposition - abuse of process and prejudice
The defendant's grounds went to the merit of the plaintiff's case, which was not before the court, and no material was placed before the court to prove abuse of process
The defendant contended the suit was an abuse of process and that reinstatement would cause him great prejudice, but placed no material before the court in proof of that contention. The court held the grounds concerned the merit of the plaintiff's case, which was not before it for consideration on this application.
Legal principles established
#- Discretionary powers under section 3A of the Civil Procedure Act and Order 51 Rule 15 must be exercised judiciously, not capriciously, with the aim of doing justice between the parties
- A party seeking to set aside an ex parte dismissal must give a reasonable explanation for non-appearance and for the delay in prosecution
Court orders
#- 1.The order of 29th May 2015 dismissing the suit for want of prosecution is set aside and the application dated 12th June 2015 is allowed as prayed
- 2.The costs of the application shall be in the cause
- Jurisdiction invoked
- Order 51 Rule 15 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act (inherent power to set aside ex parte orders)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "City Council of Nairobi v Simon Kimondo Mubea [2016] KEELC 1116 (KLR)", Case Analysis (2016). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/1116/eng@2016-01-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.