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ELCDismissedEldoret High Court Civil Suit (Notice of Motion dated 16th March, 2020)· [2020] KEELC 296 (KLR)

Zipporah Jepkemboi Korir & another v Ministry of Education & 5 others [2020] KEELC 296 (KLR)

High Court of Kenya
16 December 2020
SKS. M. Kibunja
1,053 words in judgment
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The bottom line

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The High Court refused to reinstate a suit dismissed after the plaintiffs and their lawyer missed the hearing and delayed for months before acting.

What this practically means

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Executive summary

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This is a ruling of the High Court at Eldoret (S. M. Kibunja, J) delivered on 16th December 2020 on the Plaintiffs' Notice of Motion dated 16th March 2020, filed on 2nd July 2020, seeking setting aside of the order of 11th March 2020 dismissing their suit for non-attendance and reinstatement for hearing, with costs. The application was opposed by the 3rd Defendant and the 1st and 2nd Defendants through grounds of opposition, contending the hearing date had been fixed by consent in the presence of the 1st Plaintiff and that the application was filed after inordinate delay. The court framed two issues: whether a reasonable case for setting aside the dismissal had been made, and costs. The court found the hearing date was fixed on 24th September 2019 in the presence of the 1st Plaintiff and her counsel, Mr. Momanyi, after an adjournment was granted to enable him obtain documents from Eldoret High Court Succession Cause No. 2 of 1970. On 11th March 2020 all counsel for the defendants attended but the Plaintiffs and their counsel did not, and the suit was dismissed with costs. Counsel's claim of failure to diarize was unsupported by any annexed diary, the 1st Plaintiff gave no explanation for her absence, and no reason was given for the over three-month delay in filing the application. Relying on the cited authorities, the court held inaction by counsel and party does not explain delay, and as justice delayed is justice denied, the application was without merit. The Motion was dismissed with costs under Section 27 of the Civil Procedure Act.

Key legal issues

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01

Whether the dismissal of the Plaintiffs' suit for non-attendance should be set aside and the suit reinstated

Holding

The application was dismissed; no reasonable explanation was given for the non-attendance or the delay in filing the application

Reasoning

The hearing date of 11th March, 2020 had been fixed on 24th September, 2019 in the presence of the 1st Plaintiff and her counsel. Counsel claimed failure to diarize but no diary was annexed as evidence. The 1st Plaintiff did not explain her absence, and no reason was given for filing the application over three months after dismissal. The court held justice delayed is justice denied.

p. 2
02

Costs of the application

Holding

Costs awarded to the Defendants as costs follow the event

Reasoning

Applying Section 27 of the Civil Procedure Act, the court held that costs follow the event and, the application having failed, the Plaintiffs were to pay the costs of the application.

p. 2

Legal principles established

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  • What amounts to inordinate and unreasonable delay depends on the circumstances of each case
  • Inaction by counsel and party does not suffice to explain delay
  • Costs follow the event under Section 27 of the Civil Procedure Act

Court orders

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  1. 1.The Plaintiffs' Notice of Motion dated the 16th March, 2020 under Certificate of Urgency dated 30th June, 2020 and filed on 2nd July, 2020 is dismissed with costs.

Authorities

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Legislation

  • Civil Procedure ActSection 27

Cases cited (2)

  • Rajesh Rugham Vs Fifty Investments Ltd & Another
    [2005] eKLR
  • Eliud Mukhisa Nalianya & Another Vs Joseph Wanjala Fulafu & Another
    [2019] eKLR
Jurisdiction invoked
Inherent jurisdiction of the High Court to set aside dismissal orders and Section 27 of the Civil Procedure Act on costs

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, "Zipporah Jepkemboi Korir & another v Ministry of Education & 5 others [2020] KEELC 296 (KLR)", Case Analysis (2020). Eldoret High Court Civil Suit (Notice of Motion dated 16th March, 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/296/eng@2020-12-16

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