Kiplagat Kotut v Rose Jebor Kipngok [2019] KEELC 745 (KLR)
The bottom line
#An Eldoret court reinstated a case dismissed when a lawyer arrived late, but made the late party pay the other side's legal costs anyway.
What this practically means
#Executive summary
#Key legal issues
#Whether the Decree Holder made a reasonable case for setting aside the dismissal order of 7th October, 2019
The court found merit in the motion. Counsel's explanation that he was held up in a High Court matter from 2.40 p.m. to 3.10 p.m. was unrebutted, and the application was filed only about seven days after the dismissal order.
The court examined the record and found the application of 26th September, 2019 had been fixed for hearing at 3.00 p.m. by consent. When the court resumed at 3.01 p.m. neither the Decree Holder nor Counsel was present, and the Judgment Debtor's Counsel obtained dismissal with costs. The explanation for the absence was not challenged in any material aspect, and the motion seeking reinstatement was filed within about seven days. On those facts the court found merit in the setting-aside application.
Who pays the costs of the application
Although the application succeeded, costs were awarded to the Judgment Debtor because the Decree Holder's and his Counsel's absence caused the application.
The court accepted the application but held that the dismissal order arose from the Decree Holder's side failing to attend court at the appointed time. Success on the motion did not displace responsibility for the unnecessary application; the costs were therefore awarded against the Decree Holder notwithstanding the reinstatement of the earlier motion.
Legal principles established
#- A dismissal order for non-attendance may be set aside where the delay in moving the court is short and no material prejudice is shown, but the party whose absence caused the application bears the costs.
Court orders
#- 1.The Order of 7th October, 2019 dismissing the Decree Holder's Motion dated 26th September, 2019 with costs is reviewed and set aside.
- 2.The Decree Holder's Motion dated 26th September, 2019 is reinstated for hearing.
- 3.The Decree Holder pays the Judgment Debtor's costs of this application.
- Jurisdiction invoked
- Inherent powers of the court to review and set aside its own orders (application for setting aside of dismissal order)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kiplagat Kotut v Rose Jebor Kipngok [2019] KEELC 745 (KLR)", Case Analysis (2019). Not stated in judgment (Motion dated 11th October, 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/745/eng@2019-11-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.