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ELCAllowedNot stated in judgment (Notice of Motion dated 6th December 2018)· [2020] KEELC 3159 (KLR)

Khamisi Matano Ali v Gheida Faraj [2020] KEELC 3159 (KLR)

High Court of Kenya
5 February 2020
CYC. Yano
937 words in judgment
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The bottom line

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Kenya's High Court reinstated a lawsuit dismissed after a missed hearing, ruling the non-attendance was unintentional, promptly explained, and unfairly prejudicial to no one.

What this practically means

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Executive summary

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The plaintiff/applicant moved the court by Notice of Motion dated 6th December 2018, under Order 12 Rule 7, Order 51 Rule 15 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act, seeking review and setting aside of orders of Matheka J made on 27th November 2018 dismissing the suit, and reinstatement for hearing. The applicant explained that the matter came up for notice to show cause when she was attending another matter before Njoki Mwangi J in HCCC No. 223 of 2017, and by the time she arrived the suit had been dismissed; the application was filed ten days later. The 3rd Respondent opposed through grounds of opposition, contending that the applicant had been indolent since 2016, had not complied with the order for substituted service of 30th October 2017, and that litigation must come to an end. Yano J framed a single issue: whether the dismissal order of 27th November 2018 should be set aside and the suit reinstated. Relying on Order 17 Rule 2(1), the court held that the application was filed without undue delay, counsel's uncontroverted explanation was satisfactory, and the earlier notice to show cause issued on 17th September 2018 was itself premature since one year had not lapsed. The failure to attend was neither intentional nor deliberate, the overriding objective favoured a hearing on merit, and the respondents, who were also absent, demonstrated no prejudice. The application was allowed; the dismissal was set aside, the suit reinstated for hearing on merit, and each party ordered to bear own costs.

Key legal issues

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01

Whether the dismissal of the suit on 27th November 2018 should be set aside and the suit reinstated

Holding

The application was allowed; the dismissal was set aside and the suit reinstated for hearing on merit

Reasoning

The court found the application was filed without undue delay (7th December 2018, ten days after dismissal). Counsel's explanation for missing the notice to show cause was uncontroverted and satisfactory. The court record showed the parties had not been served with an earlier notice to show cause dated 17th September 2018, which was in any event premature as one year had not lapsed. The overriding objective favoured determination on merit and the respondents, also absent, showed no prejudice.

p. 2

Legal principles established

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  • Where no step has been taken in a suit for one year, the court may issue notice to show cause and dismiss the suit if no cause is shown; the aggrieved party may apply under Order 12 Rule 7 to set aside the dismissal and reinstate the suit
  • A dismissal for non-attendance will be set aside where the failure to attend was unintentional, adequately explained, made without undue delay, and no prejudice is demonstrated by the respondent

Court orders

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  1. 1.The application dated 6th December 2018 is allowed
  2. 2.The order made on 27th November 2018 dismissing the suit is set aside
  3. 3.The case is reinstated for hearing on merit
  4. 4.Each party to bear own costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 12 Rule 7
  • Civil Procedure RulesOrder 51 Rule 15
  • Civil Procedure RulesOrder 17 Rule 2(1)
  • Civil Procedure ActSection 3A
Jurisdiction invoked
Order 12 Rule 7, Order 51 Rule 15 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act

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, "Khamisi Matano Ali v Gheida Faraj [2020] KEELC 3159 (KLR)", Case Analysis (2020). Not stated in judgment (Notice of Motion dated 6th December 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3159/eng@2020-02-05

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