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ELRCDismissedNot stated in the extract of the judgment provided· [2019] KEELRC 721 (KLR)

Stanley Ntongai Mithibua & 3 others v County Public Service Board of Meru & 2 others [2019] KEELRC 721 (KLR)

High Court of Kenya
30 September 2019
NMNzioki wa Makau
728 words in judgment
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The bottom line

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Kenya's High Court refused to reinstate an application dismissed for non-attendance, ruling that missing the hearing of your own motion is not an excusable mistake.

What this practically means

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Executive summary

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The Petitioners moved the court by motion dated 27th June 2019, supported by the affidavit of their advocate Nyamu Dorcas Mwari, seeking reinstatement of their application dated 18th June 2019 which was dismissed for non-attendance on 27th June 2019. Counsel explained that she was engaged in other matters, including Succession Cause No. 92 of 2002 (Estate of M'Mugambi Mutindi), listed before Mabeya J., and Criminal Cases No. 2051 and 2052 of 2018 before the subordinate court; she annexed her diary and the cause list to show the succession cause was indeed listed that day. The Respondents, through the replying affidavit of Ken Muriuki Advocate, opposed the motion, describing it as laden with falsehoods and mala fides, noting the Petitioners' earlier Petition had been struck out, and arguing it was condescending for counsel to prioritise subordinate court matters over the High Court Petition. In a ruling delivered at Meru on 30th September 2019, Nzioki wa Makau J applied the principles in Shah v Mbogo [1967] EA 116. The court found that although counsel had other engagements, the succession cause was a mention second on the list and could have been handled in time, and counsel made no arrangement for any of the many advocates present to hold her brief. The failure to attend the hearing of one's own motion was held not to be accident, inadvertence or excusable mistake but to tilt towards deliberate obstruction or delay. The motion was dismissed with costs, with directions on the Petition's disposal to follow.

Key legal issues

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01

Whether the dismissal for non-attendance should be set aside and the application reinstated

Holding

The motion for reinstatement was dismissed; the Petitioners were undeserving of the exercise of the court's discretion

Reasoning

Applying Shah v Mbogo, the court held that the discretion to set aside dismissal orders exists to avoid injustice from accident, inadvertence or excusable mistake, not to assist deliberate obstruction or delay. Counsel was engaged elsewhere but made no arrangement for anyone to hold her brief; the Succession Cause was a mention second on the list and could have been dealt with in time. Opting to attend subordinate court criminal cases before coming late to the High Court tilted towards deliberate delay.

p. 2

Legal principles established

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  • The court's discretion to set aside an order or judgment made in the absence of a party is intended to be exercised to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake or error, but not to assist a person who has deliberately sought to obstruct or delay the course of justice
  • Failure by counsel to attend the hearing of their own motion, without arranging for another advocate to hold their brief, does not amount to accident, inadvertence or excusable mistake and does not merit reinstatement

Court orders

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  1. 1.The motion dated 27th June 2019 seeking reinstatement of the Petitioners' application dated 18th June 2019 is dismissed with costs
  2. 2.Directions on the disposal of the Petition to be issued after the Ruling

Authorities

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Cases cited (1)

  • Shah v Mbogo
    [1967] EA 116
Jurisdiction invoked
Inherent discretion of the High Court to set aside/reinstate orders dismissed for non-attendance (exercised in first instance over a pending Petition)

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, "Stanley Ntongai Mithibua & 3 others v County Public Service Board of Meru & 2 others [2019] KEELRC 721 (KLR)", Case Analysis (2019). Not stated in the extract of the judgment provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/721/eng@2019-09-30

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