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ELCPartially AllowedNot stated in judgment· [2021] KEELC 1278 (KLR)
Garden Estate Company Limited v Gulbanu D/O Hussein Jan Mohamed & 2 others [2021] KEELC 1278 (KLR)
High Court of Kenya (first-instance matter, court division not stated in the extract)
21 October 2021
490 words in judgment
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·~2 min to read original · ~4 min briefThe bottom line
#What this practically means
#Executive summary
#This ruling by L. Komingoi, Judge, delivered in Nairobi on 21st October 2021, determines a Notice of Motion dated 13th April 2021 by the plaintiff/company, supported by the affidavit of its director Robert Otachi, seeking stay of proceedings, setting aside of the dismissal order made on 4th February 2021, reinstatement of the suit, setting aside of the ex-parte hearing of the defendants' counterclaim of 4th February 2021, a fresh hearing of both the suit and counterclaim, and costs in the cause. The application was opposed through grounds of opposition dated 14th April 2021 and a replying affidavit sworn by Firoz Nanji on 22nd April 2021; by consent of 15th April 2021 it was canvassed by written submissions. The court reviewed the record and found the matter had been delayed largely by the plaintiff's own actions: on 4th February 2021 the plaintiff's witness arrived after the plaintiff's case had been closed, defence witnesses testified without cross-examination, and although the plaintiff was represented, its counsel were absent and the witness claimed to have lost contact with them. Balancing these circumstances, the court held it was in the interest of justice to give the plaintiff an opportunity to present its case. The motion was allowed: the dismissal order was set aside and the suit reinstated; the ex-parte counterclaim proceedings were set aside. The reinstatement was made conditional on the plaintiff paying the defendant throw away costs of Kshs.15,000 within fourteen days, with the costs of the application borne by the plaintiff/applicant.
Key legal issues
#01
Whether the dismissal order of 4th February 2021 and the ex-parte proceedings on the counterclaim ought to be set aside and the suit reinstated
Holding
Yes - the application was allowed on condition that the plaintiff pays throw away costs of Kshs.15,000 and the costs of the application.
Reasoning
The court reviewed the record and found the delay was largely attributable to the plaintiff's own actions: its witness arrived after the plaintiff's case had been closed, its counsel were absent, and the witness had not contacted counsel. Weighing these circumstances, the court concluded justice required giving the plaintiff an opportunity to present its case, on terms protecting the defendant with costs.
p. 2
Legal principles established
#- It is in the interest of justice that a party be afforded an opportunity to present its case, justifying setting aside a dismissal order and ex-parte proceedings, subject to conditions such as throw away costs.
Court orders
#- 1.The dismissal order made on 4th February 2021 is set aside and the suit is reinstated
- 2.The ex-parte hearing proceedings of the counterclaim of 4th February 2021 are set aside
- 3.The plaintiff to pay the defendant throw away costs of Kshs.15,000 within fourteen (14) days from the date of the ruling (condition of reinstatement)
- 4.Costs of the application to be borne by the plaintiff/applicant
- Jurisdiction invoked
- Inherent power of the court to set aside dismissal orders and ex-parte proceedings in the interest of justice (no specific provision quoted in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Garden Estate Company Limited v Gulbanu D/O Hussein Jan Mohamed & 2 others [2021] KEELC 1278 (KLR)", Case Analysis (2021). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1278/eng@2021-10-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.