Automated Summary
Key Facts
The case between Damaris Ngina Kithuku (claimant) and Toyota Tsusho East Africa Limited (respondent) involved multiple hearing reschedulings. The initial hearing on September 29, 2022, was adjourned due to the claimant's illness. The respondent failed to appear at the rescheduled hearing on February 24, 2023, due to an error in diarizing the date as March 24. The claimant proceeded with evidence and rested her case. The court found the respondent's absence excusable and unconditionally allowed them to reopen their case, rejecting the claimant's request for 'throw away' costs.
Issues
- The court considered whether to allow the respondent to reopen its case after missing the rescheduled hearing on February 24, 2023, due to an excusable error in diarizing the date. The court found that the respondent's past conduct demonstrated readiness and willingness to respond, and thus unconditionally allowed the reopening of the case to ensure fair administration of justice.
- The claimant requested Kshs 50,000 in throwaway costs after the respondent's application to reopen the case. The court determined there was no justification for such payment, as the respondent's error was excusable and the claimant did not oppose the reconsideration of the case based on existing submissions.
Holdings
- The respondent was ready to respond to the claim and had its witness available on September 29, 2022.
- The court unconditionally allowed the respondent to reopen its case, finding no justification for relying solely on documentation or paying the claimant Kshs 50,000 as throw away costs.
- The hearing on September 29, 2022 did not take place due to the claimant's illness.
- The hearing was rescheduled for February 24, 2023, but the respondent failed to appear due to an error in diarizing the date.
- The court found the respondent's failure to attend on February 24, 2023, was due to an excusable error in recording the hearing date as March 24, 2023.
Remedies
- The application dated March 9, 2023 filed by the respondent is allowed in terms of prayer 3.
- Costs in the cause.
Legal Principles
- The court unconditionally allowed the respondent to reopen its case, emphasizing the interest of fair administration of justice and rejecting the claimant's request for throw away costs.
- The court determined that there was no justification for awarding throw away costs to the claimant.
Judge Name
James Rika
Passage Text
- It Is Ordered - a. The application dated March 9, 2023 filed by the respondent is allowed in terms of prayer 3.
- The court is persuaded by the respondent's past conduct in the proceedings, that it is willing, able and ready to respond to the claim, and that failure to attend court on February 24, 2023, was due to an excusable error in diarizing.