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ELCAllowedNot stated in judgment· [2018] KEELC 1887 (KLR)

Douglas Kariuki Macharia & 2 others v James Macharia Kariuki & another [2018] KEELC 1887 (KLR)

High Court of Kenya
20 September 2018
JKJ. G. Kemei
566 words in judgment
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The bottom line

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A Kenyan court reinstated a suit dismissed when the parties arrived 15 minutes late, but ordered them to pay compensation costs first.

What this practically means

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Executive summary

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The plaintiffs' suit, certified ready for hearing on 18/12/2017, was fixed by consent for hearing on 17/4/2018. On that date none of the parties nor their advocates were present when the matter was called out, and the court dismissed the suit for non-attendance. The plaintiffs and their advocate, Mr Karuga Wandai, moved by Notice of Motion dated 20/4/2018 seeking to set aside the dismissal and reinstate the suit, deponing that they arrived in court at 9.15 am and found the matter already dismissed. The 2nd Respondent opposed, contending the application was intended to delay the case and was an abuse of court, and that the applicants had not shown plausible reasons for review. The court held that its power to set aside a dismissal for non-attendance derives from Order 12 rule 7 of the Civil Procedure Rules and is discretionary. It concurred that neither the applicants nor their advocate explained their late arrival, noting that court sittings begin at 9 am and arriving at 9.15 am risks dismissal. However, the claim that the application was designed to delay justice was unsupported by evidence; the non-attendance was found inadvertent, and no prejudice to the respondents was demonstrated. The application was allowed on condition that the applicants pay the respondents throw away costs of Kshs 10,000/-, so that each party may have their day in court. Judgment was delivered at Murang'a on 20th September 2018 by J.G. Kemei, Judge.

Key legal issues

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01

Discretion to set aside dismissal for non-attendance

Holding

The discretion under Order 12 rule 7 was exercised in favour of the Applicants because their failure to attend was inadvertent, no evidence showed an intent to delay, and the Respondents showed no prejudice.

Reasoning

Although neither the Applicants nor their advocate explained why they arrived at 9.15 am after sittings began at 9 am, the court found the non-attendance inadvertent. The Respondents' assertion that the application was designed to delay the case was unsupported by evidence, and no prejudice was demonstrated. Justice favoured reinstatement so each party has their day in court, subject to throw away costs.

p. 1
02

Condition attaching to reinstatement

Holding

Reinstatement granted on condition that the Applicants pay throw away costs of Kshs 10,000/- to the Respondents.

Reasoning

The court balanced the Applicants' right to be heard with the Respondents' inconvenience caused by the non-attendance. Instead of refusing reinstatement, it compensated the Respondents by way of throw away costs, reflecting the justice of the application.

p. 1

Legal principles established

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  • The power to set aside an order dismissing a suit for non-attendance is a discretionary power vested in the trial court under Order 12 rule 7 of the Civil Procedure Rules.
  • Court sittings begin at 9.00 am and attending after that time risks dismissal for non-attendance.

Court orders

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  1. 1.The Notice of Motion dated 20/4/2018 allowed; the order of 17/4/2018 dismissing the suit for non-attendance set aside and the suit reinstated
  2. 2.Applicants to pay Respondents throw away costs of Kshs 10,000/- as a condition of reinstatement

Authorities

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Legislation

  • Civil Procedure RulesOrder 12 rule 7
Jurisdiction invoked
Order 12 rule 7 of the Civil Procedure Rules (discretion to set aside dismissal of suit for non-attendance)

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, "Douglas Kariuki Macharia & 2 others v James Macharia Kariuki & another [2018] KEELC 1887 (KLR)", Case Analysis (2018). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1887/eng@2018-09-20

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.