Jacob H Saleri v Town Council of Kilifi [2020] KEELC 2649 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the discretionary power to set aside dismissal for want of prosecution should be exercised in favour of the Plaintiff
The Court declined to exercise its discretion in the Plaintiff's favour, finding the suit marked by years of inaction and the explanation for non-attendance unsupported.
The suit had been stood over generally in 2010, transferred in 2015, and dismissed in 2019 after neither party appeared on the Notice to Show Cause. The reinstatement application itself was dismissed on 14th October 2019 for non-attendance. Counsel's excuse of a matatu breakdown was unsupported by affidavit evidence, and he took no steps for a month after the dismissal. The Court found no indication of genuine prosecution of the matter.
Whether Counsel's explanation of a matatu breakdown and a purported call to a court clerk justified setting aside the dismissal
The explanation was rejected as unsupported and implausible.
There was no affidavit from the clerk or any other evidence of the alleged call, and it was unclear why Counsel did not directly contact another Advocate to hold his brief. Although Counsel claimed to have arrived in Court at 11.00 a.m., he took no action until filing the application one month later, undermining the claim of diligence.
Legal principles established
#- The Court's discretion to set aside an order or dismissal is wide but must be exercised to do justice to the parties and not to assist a party who has deliberately obstructed or delayed the cause of justice
- The discretion to set aside is meant to relieve against accident, inadvertence or excusable mistake, not deliberate delay or evasion
Court orders
#- 1.The application dated 12th November 2019 was dismissed
- 2.No order as to costs
- Jurisdiction invoked
- Discretionary power to set aside orders/dismissals under the Civil Procedure Rules (suit dismissed under Order 17 Rule 2(1) of the Civil Procedure Rules)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jacob H Saleri v Town Council of Kilifi [2020] KEELC 2649 (KLR)", Case Analysis (2020). Notice of Motion application dated 12th November 2019 (suit formerly Mombasa High Court Civil Case No. 46 of 2007, transferred to Malindi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2649/eng@2020-05-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.