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ELCAllowedNot stated in the judgment· [2018] KEELC 2480 (KLR)

Jacob Makunyi v Diego Nkambi [2018] KEELC 2480 (KLR)

High Court of Kenya (Chuka)
18 July 2018
PNP.M. Njoroge
252 words in judgment
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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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By an application dated 2nd July 2018, the plaintiff sought three orders: that the dismissal order issued on 17th January 2018 be set aside; that the suit be reinstated for hearing; and that costs of the application be costs in the cause. The application was grounded on the contention that the suit was dismissed without notice to the applicant, that sufficient cause would have been shown had notice been given, that the applicant had been greatly prejudiced, and that the dismissal denied him an opportunity to be heard in a suit in which he had a good case. When the application came up for inter partes hearing on 18th July 2018, Mr. Mwenda for the plaintiff/applicant told the court that neither he nor his client had been served with the notice to show cause, and that the parties had substantially complied with Order 11 of the Civil Procedure Rules, with the suit ready for hearing. Mr. Charles Muchiri, holding brief for Mr. Nyamu Nyaga for the defendant, informed the court that the defendant was not opposed to the application. In the circumstances, and in the interest of justice, the court allowed the application, ordered that costs be in the cause, and directed that the suit be heard on 18th September 2018. The ruling was delivered in open court at Chuka on 18th July 2018 by P.M. Njoroge, Judge.

Key legal issues

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01

Whether the dismissal of the suit should be set aside and the suit reinstated

Holding

The court allowed the application, noting lack of service of the notice to show cause, the applicant's claimed substantial compliance with Order 11, the defendant's non-opposition, and the interest of justice.

Reasoning

The applicant's counsel stated that neither he nor his client had been served with the notice to show cause, and that the parties had substantially complied with Order 11 of the Civil Procedure Rules, leaving the suit ready for hearing. Counsel for the defendant confirmed the defendant was not opposed to the application. On these facts, and in the interest of justice, the court allowed the application and fixed the suit for hearing.

p. 1

Legal principles established

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  • An application to set aside dismissal of a suit may be allowed in the interest of justice, particularly where the defendant does not oppose it.

Court orders

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  1. 1.The application is allowed
  2. 2.Costs shall be in the cause
  3. 3.Suit to be heard on 18th September, 2018

Authorities

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Legislation

  • Civil Procedure RulesOrder 11
Jurisdiction invoked
Inherent powers of the court to reinstate a suit dismissed under Order 11 Civil Procedure Rules, in the interest of justice

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, "Jacob Makunyi v Diego Nkambi [2018] KEELC 2480 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2480/eng@2018-07-18

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