Hezekiah Macharia Mwangi & another v Joseph Nganga Kihonge & others [2004] KEHC 1557 (KLR)

REPUBLIC OF KENYA

1) Civil Practice and Procedure

2) Application for leave to reinstate a suit dismissed for non-attendance

3) Reasons for non attendance

i) Advocate was out of country and gave another to hold brief ii) The advocate holding brief attended but the plaintiff failed to attend without giving any reasons iii) When suit was dismissed the plaintiff explanation was that he arrived late to court due to the traffic jam. 4) Held:Discretion of the court to reinstate suit. There must be good cause why this should be done. As non- attendance by plaintiff was due to circumstances beyond his control and has apologised to court – the suit is reinstated 5) Case law: Nil

6) Advocate L. Kimondo holding brief for Ameka advocate for the plaintiff E.N. Nganga advocate for the 2nd respondent E.N. Nganga holding brief for G.M. Njuguna for 1st and 2nd Respondent

IN THE HIGH COURT OF KENYA AT NAIROBI CIVIL CASE NO. 544 OF 1994  HEZEKIAH MACHARIA MWANGI & ANOTHER ……PLAINTIFFS VERSUS JOSEPH NGANGA KIHONGE & OTHERS …….. DEFENDANTS

R U L I N G

On the day this suit was set for hearing the plaintiff was absent. The advocate for the plaintiff had instructed or send another advocate to hold brief for her as she would be out of the county. The advocate for defendant No.2 was present and held brief for 1st and 3rd defendants.

The suit was dismissed under Order 9b r 4 CPR for the nonattendance of the plaintiff on the 27. 1.04.

An application was filed on the 3. 3.04 seeking to reinstate this suit under Order 9b r8 CPR which rules allows such prayers where there is good cause why such a suit should be reinstated.

The plaintiff stated that he had failed to attend court as he was travelling from Muranga, an area outside Nairobi. The traffic jam was so bad that by the time he arrived to Nairobi he found his suit had been dismissed His advocate, Mrs. Ameka apologised to court on his and her behalf. That this was inadvertent.

To reinstate a suit is at the discretion of the court. This discretion must be used to the fair justice of the rule of law and natural justice.

I will accept this explanation as given to me. I hereby reinstate this suit with the cost being to the defendants assessed Ksh.6,500/- before the matter is fixed for hearing.

Dated this 23rd day of April, 2004 at Nairobi. M.A. Ang’awa Judge

Ameka & Co. Advocates for the plaintiff E.N. Nganga & Co. Advocates for the defendant