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ELCAllowedNot stated in the judgment· [2016] KEELC 88 (KLR)

Jamin Kiombe Lidodo v Emily Jerono & Attorney General [2016] KEELC 88 (KLR)

High Court of Kenya
16 December 2016
AOANTONY OMBWAYO
804 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court reinstated a lawsuit dismissed after the plaintiff missed a hearing due to illness, confirming mistakes shouldn't deny anyone a fair hearing.

What this practically means

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Executive summary

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The applicant, Jamin Kiombe Lidodo, moved the High Court at Eldoret to set aside an order of 1.9.2016 dismissing his suit for want of prosecution and to reinstate the suit for hearing on merit, with costs in the cause. In his supporting affidavit he explained that on 25.7.2016 he was stood down from the witness box due to diabetes mellitus; that on 1.9.2016 he was again unwell as shown by annexed medical documents; and that his advocate, Mr Mbugua, was away in Nairobi on official duties and his legal clerk could not secure an advocate to hold brief. The defendant's representative, Gustine Othuro, opposed the application, deponing that the hearing date was fixed by consent, that the defendant and two witnesses attended and were ready to proceed, that the plaintiff's advocate's phone was off, that there was no documentation of the claimed Nairobi duties, and that the medical documents were dated 2.9.2016 and amounted to routine blood pressure checks. The court found it uncontroverted that the plaintiff was unwell on the hearing date and believed Mr Mbugua's explanation that the hold-brief advocate failed to attend. The court record showed M/s Kipsei arrived shortly after the dismissal and explained the predicament, though too late. Adopting previous holdings that blunders will continue to be made and a party should not suffer the penalty of losing a hearing on merit because of a mistake, the court exercised its discretion, set aside the dismissal, reinstated the suit for hearing on merit, and ordered costs of the application to be in the cause.

Key legal issues

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01

Whether to set aside dismissal of suit for want of prosecution

Holding

The court exercised its discretion in favour of reinstatement because the plaintiff's illness was uncontroverted and counsel's failure to secure a hold-brief advocate was a mistake that should not deprive a party of a hearing on merit

Reasoning

The court found it uncontroverted on the documents that the plaintiff was unwell on the hearing date. It also accepted counsel's explanation that an advocate asked to hold brief did not attend, and noted from the record that M/s Kipsei arrived soon after the dismissal and explained the predicament. Relying on previous holdings that blunders will continue to be made, the court held a party should not suffer the penalty of losing a hearing on merit for such a mistake, and reinstated the suit.

p. 3

Legal principles established

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  • Blunders will continue to be made from time to time and it does not follow that because a mistake has been made a party should suffer the penalty of not having his case determined on merit

Court orders

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  1. 1.The order of 1.9.2016 dismissing the plaintiff's suit for want of prosecution is set aside
  2. 2.The suit is reinstated and to be heard on merit
  3. 3.Costs of the application to be in the cause
Jurisdiction invoked
Inherent discretion of the court to set aside or vary its own orders (the plaintiff's suit was dismissed for want of prosecution; application to reinstate)

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, "Jamin Kiombe Lidodo v Emily Jerono & Attorney General [2016] KEELC 88 (KLR)", Case Analysis (2016). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/88/eng@2016-12-16

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