Automated Summary
Key Facts
Zebedee Mmata Injera's suit was dismissed on May 31, 2018 for non-attendance. He claimed his counsel failed to notify him of the hearing date and disputed the service of the hearing notice on his previous counsel. The defendant/interested party did not respond to the application. The court found that a bonafide mistake by counsel justified reinstating the suit, setting aside the dismissal order, and ordered the plaintiff to pay Kshs.20,000 in thrown away costs to the defendant.
Issues
- Who pays the costs of the application. The court ruled that the applicant must pay the respondent 'thrown away costs' assessed at Kshs.20,000/-, balancing the need to rectify the applicant's mistake with the respondent's inconvenience, as outlined in the determination under Article 50 and 159(2) of the Constitution 2010.
- Whether the applicant has tendered a reasonable explanation for his failure to attend court on the date his suit was dismissed. The court considered the applicant's claim that his counsel failed to notify him of the hearing and disputed the service of the hearing notice to his previous counsel, referencing Order 12 Rule 3 of the Civil Procedure Rules and precedents like Joseph Kinyua v GO Ombachi [2019] eKLR.
- Whether there is a basis for the court to exercise its discretionary power to set aside the order dismissing the suit on 31st May 2018 and reinstate it. The court evaluated the applicant's arguments under Section 3A of the Civil Procedure Act and Order 51 Rule 15, emphasizing the need to avoid injustice and the principle that counsel's mistakes should not penalize the client, citing cases like Belinda Muras & 6 Others vs Amos Wainaina [1978] KLR.
Holdings
- The court reviewed and set aside the dismissal order of 31st May 2018, reinstating the plaintiff's suit for hearing and determination on merit. The applicant is ordered to pay the respondent thrown away costs of Kshs.20,000, to be paid before the next court appearance.
- The plaintiff's suit, initiated on 19th August 2014, is reinstated for a full hearing and determination on its merits following the applicant's satisfactory explanation for non-attendance.
- The applicant was found to have provided sufficient cause for non-appearance due to a mistake by his previous counsel, who failed to inform him of the 31st May 2018 hearing date. The court emphasized that counsel's errors should not penalize the client, aligning with constitutional principles of substantive justice.
Remedies
- The applicant is ordered to pay the respondent thrown away costs assessed at Kshs.20,000/- (twenty thousand only) before the next court appearance.
- The plaintiff's suit, which was dismissed for non-attendance, is reinstated for hearing and determination on its merits.
- The court has reviewed and set aside the dismissal order dated 31st May 2018.
Monetary Damages
20000.00
Legal Principles
The court applied the Rules of Natural Justice, emphasizing that a litigant must not be denied a hearing without cause, even if their absence was due to a mistake by their counsel. This principle was central to allowing the reinstatement of the plaintiff's case despite a prior dismissal for non-attendance.
Precedent Name
- Phillip Chemwolo & Another vs Augustine Kubede
- Shah vs Mbogo & Another
- Joseph Kinyua v GO Ombachi
- Belinda Muras & 6 Others vs Amos Wainaina
- Martha Wangari Karua vs IEBC
Cited Statute
- Civil Procedure Act
- Civil Procedure Rules 2010
Judge Name
S. M. Kibunja
Passage Text
- The Rules of Natural Justice require that the court must not necessarily drive any litigant from the seat of justice without a hearing, however weak his or her case may be.
- That if it is true that the applicant was not notified by his then advocate of the hearing date of 31st May 2018, and noting that it was therefore a mistake of his advocate, and taking into account that the suit relates ownership of land, which is an emotive issue, it is my opinion that it is in the interest of justice, the plaintiff deserves another chance to have his suit heard and determined on merit.
- A mistake is a mistake. It is no less a mistake because it is an unfortunate step. It is no less pardonable because it is committed by senior counsel. Though in the case of junior counsel court might feel compassionate more readily. A blunder on a point of law can be a mistake. The door of justice is not closed because of a mistake has been made by a lawyer of experience who ought to know better. The court may not condone it but ought certainly to do whatever is necessary to rectify if the interest of justice so dictate.