Ramadhan O. Mukonzo v John Wesonga Olunga & another; [2019] KEELC 3758 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the dismissal of the suit for non-attendance should be set aside
The application for reinstatement was allowed because the reasons for non-attendance were found reasonable
The court perused the file and confirmed the suit was dismissed on 24th October 2018 for non-attendance. The applicant explained that a typographical error in the case number on the affidavit of service (64 of 2018 instead of 54 of 2018) delayed filing the return of service, and counsel had advised the client not to attend. The court accepted these reasons as reasonable, found the applicant had a case warranting trial on merit, and reinstated the suit subject to a condition to fix a hearing date within thirty days.
The applicable test for reinstatement of a suit dismissed for non-attendance
The court applied the Ivita v Kyumbu test, weighing whether the delay is prolonged and inexcusable and whether justice will be done despite it
Relying on Utalii Transport Company Ltd & 3 Others v NIC Bank & Another, the court noted the plaintiff's primary duty to progress the case, and on Ivita v Kyumbu, that the test is whether the delay is prolonged and inexcusable and if justice will be done despite the delay, justice being justice for both plaintiff and defendant. On the facts, the delay was brief (dismissal on 24 October 2018, application filed 8 November 2018) and excusable.
Legal principles established
#- It is the primary duty of plaintiffs to take steps to progress their case since they are the ones who dragged the defendant to court
- The decision whether a dismissed suit should be reinstated is a matter of justice dependent on the facts of each case
- The test for reinstatement after dismissal for non-attendance is whether the delay is prolonged and inexcusable and whether justice will be done despite the delay
Court orders
#- 1.The orders of 24/10/2018 dismissing the applicant's suit are set aside and the suit is reinstated to be heard and decided on merit
- 2.Reinstatement is on condition that the applicant obtains a hearing date within thirty (30) days from the date of the ruling
- Jurisdiction invoked
- Order 12 rules 1 and 7 of the Civil Procedure Rules, 2010 and Article 157 of the Constitution of Kenya
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ramadhan O. Mukonzo v John Wesonga Olunga & another; [2019] KEELC 3758 (KLR)", Case Analysis (2019). 54 of 2018 (mistyped as 64 of 2018 in the return of service). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3758/eng@2019-04-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.