Republic v The Chairman of the Arbitration Board, Tharaka Adjudication Area, Gatunga Adjudication Section & another Ex-Parte Mbugi Kirakura & another [2017] KEELC 2293 (KLR)
The bottom line
#Kenya's High Court reinstated a lawsuit dismissed when the lawyer missed court, showing honest explanations can get dismissals reversed.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the order dismissing the suit on 15th March 2017 should be set aside and the suit reinstated
- 2.Whether the County Council of Tharaka should be substituted with the County Government of Tharaka Nithi as respondent
Key legal issues
#Whether the dismissal of the suit on 15th March 2017 should be set aside
The dismissal was set aside and the suit reinstated because counsel's absence was reasonably explained.
Counsel for the exparte applicant explained that he was attending to another suit in the High Court at Chuka when this suit was called out and dismissed. The court accepted the explanation, held that the suit should be heard on merits, and vacated the dismissal order, reinstating the suit forthwith in the interests of justice.
Whether the County Council of Tharaka should be substituted with the County Government of Tharaka Nithi
Substitution allowed on oral application, reflecting the transition from local authorities to county governments.
The court allowed the oral application for substitution of the County Council of Tharaka with the County Government of Tharaka Nithi, permitting the judicial review proceedings to continue against the successor entity. No detailed reasoning is recorded beyond the order itself.
Legal principles established
#- A suit dismissed for non-attendance may be reinstated where counsel gives a reasonable explanation for absence, in the interests of justice so that the suit is heard on its merits
Court orders
#- 1.The dismissal order issued on 15th March 2017 is vacated and the suit is reinstated forthwith
- 2.The oral application that the exparte applicant substitutes the County Council of Tharaka with the County Government of Tharaka Nithi is allowed
- 3.The exparte applicant to file submissions on the main motion within 21 days; other parties within 30 days after receipt of the exparte applicant's submissions
- 4.Directions on 19th September 2017
- 5.Costs of the application to be in the cause, awarded to the interested party
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Inherent power of the court to set aside its own orders in the interests of justice (no specific provision cited in the judgment)
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
I accept Mr Mwanzia's explanation that he was attending to another suit in the High Court at Chuka when this suit was dismissed.
In the circumstances the dismissal order issued on 15th March, 2017 is vacated with the effect that the suit is reinstated forth.
The oral application that the exparte applicant substitutes the County Council of Tharaka with the County Government of Tharaka Nithi is allowed.
Costs of this application, to be in the cause, awarded to the interested party.
Issues in the judgment
#The judgment does not state the name of the court, the case number, or the parties' full names in the body excerpt
The word 'forth' appears where 'forthwith' is evidently intended
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v The Chairman of the Arbitration Board, Tharaka Adjudication Area, Gatunga Adjudication Section & another Ex-Parte Mbugi Kirakura & another [2017] KEELC 2293 (KLR)", Case Analysis (2017). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2293/eng@2017-06-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.