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High CourtAllowed

Plaintiff v Defendant (Reinstatement of Suit Dismissed for Non-Attendance)

High Court of Kenya
20 February 2020
WOW. A. Okwany
1,141 words in judgment
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The bottom line

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If your case is dismissed due to a missed court date, the High Court of Kenya may reinstate it if the absence was an honest, excusable mistake.

What this practically means

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Executive summary

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This was an application dated 26th September 2019 seeking reinstatement of the plaintiff's suit, which had been dismissed for non-attendance at a hearing on 2nd September 2019 during the court's service week. The application was supported by the affidavit of the plaintiff's advocate, Mr James Wanjeri, who explained that he had sent an associate advocate to court but the courtroom was locked; unbeknown to them, the Deputy Registrar had posted a notice that sittings would commence at 10.15am, and by the time the matter was called the counsel sent to court had left the premises. The respondent opposed through the affidavit of its advocate, Mr Wycliffe Oyoo, averring that the hearing date had been taken by consent and the suit was dismissed at 11am for want of appearance; counsel for the respondent conceded the notice of the changed sitting time. The court framed a single issue: whether the suit should be reinstated. Applying Patel v EA Cargo Handling Services Ltd and Shah v Mbogo, the court held its discretion to reinstate is aimed at avoiding injustice from accident, inadvertence or excusable mistake, not at assisting those who deliberately obstruct justice. It found the plaintiff's counsel had satisfactorily explained the absence, that the plaintiff acted promptly, and that counsel's mistake should not be visited on the client, citing Phillip Chemwolo v Kubede and Mbaki v Macharia on the right to be heard. The application was allowed on condition that the plaintiff pay thrown away costs to the defendant together with the costs of the application.

Key legal issues

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01

Whether the plaintiff's suit dismissed for non-attendance should be reinstated

Holding

Reinstatement granted; counsel's absence was an excusable mistake given the Deputy Registrar's notice changing court sitting times, and the application was filed promptly.

Reasoning

The court applied the discretionary principles in Patel v EA Cargo Handling Services and Shah v Mbogo: discretion exists to avoid injustice from accident, inadvertence or excusable mistake, but not to assist those who deliberately obstruct justice. Counsel explained the absence to the court's satisfaction; the Deputy Registrar's notice of a 10am start was not within his knowledge. The court also noted counsel should have checked with the registry when the courtroom remained locked, but this lapse did not outweigh the right to be heard.

p. 2

Legal principles established

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  • The court has a wide discretion to set aside its orders and reinstate suits dismissed for non-attendance, to be exercised to do justice between the parties.
  • A mistake by counsel should not be visited on the client where the application is brought promptly and without intent to delay justice.

Court orders

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  1. 1.The application dated 26th September 2019 is allowed
  2. 2.The orders of 2nd September 2019 dismissing the suit are set aside and the suit reinstated
  3. 3.Condition: the plaintiff to pay thrown away costs to the defendant together with the costs of the application
Jurisdiction invoked
Inherent discretion of the court to set aside its own orders and reinstate suits dismissed for non-attendance, under the court's rules

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, "Plaintiff v Defendant (Reinstatement of Suit Dismissed for Non-Attendance)", Case Analysis (2020). . Source:

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