Mbabali v Kidza & Another (Civil Suit 615 of 1969)

Observed later treatment

No later-treatment classification is recorded for this judgment.

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

Holding

The High Court held that an application to set aside a dismissal order under Order 9 Rule 20 may properly be brought by notice of motion as the Civil Procedure Rules do not prescribe a specific form for such applications. The court found sufficient cause for non-appearance where counsel was sick and bedridden and the instructed advocate arrived six minutes late due to an inadvertently slow watch. The dismissal order was set aside to avoid injustice and ensure the suit would be determined on its merits.

Outcome

Dismissal order set aside; suit to proceed to hearing on merits

Facts

Civil Suit No. 615 of 1969 was filed on 29 November 1969 by Daniel Sempa Mbabali against William K. Kidza and four other defendants concerning land. Over the course of the suit, four of the defendants died and the Administrator General was appointed to administer their estates. The suit had a protracted history spanning over 20 years with multiple adjournments. On 21 May 1985 the plaintiff obtained an ex parte judgment which was later set aside on 15 January 1986. On 4 October 1988, the suit was dismissed for non-prosecution when counsel for the plaintiff did not appear. The plaintiff's lead counsel, Mr. Sendege, was sick and bedridden on that date. His junior, Mr. Senyondo, who held the brief, arrived six minutes late due to his watch being eleven minutes behind standard time. The plaintiff filed a notice of motion on 14 October 1988 to set aside the dismissal order, which was initially dismissed by Ouma J. on 2 May 1990 for being instituted under the wrong law. The present application was then brought under Order 9 Rule 20 and Order 48 Rule 1.

Issues

1. Whether the application to set aside the dismissal order was properly before the court in the form of a notice of motion.
2. Whether the applicant had shown sufficient cause for non-appearance under Order 9 Rule 20 of the Civil Procedure Rules.
3. Whether the applicant was guilty of laches warranting refusal to set aside the dismissal order.

Orders

• Application granted.
• The dismissal order dated 4 October 1988 is set aside.
• Costs for 4 October 1988 and for this application shall be paid to the first respondent/defendant by the applicant/plaintiff in any event.
• These costs must be taxed and paid by the applicant within twenty days from the date hereof.
• The applicant must expeditiously secure the exhibits needed in this case and have the suit fixed for hearing as quickly as possible.

Rules and key headnotes

Legislation cited (5)

• Civil Procedure Rules Order 9 Rule 20
• Civil Procedure Rules Order 9 Rule 19
• Civil Procedure Rules Order 48 Rule 1
• Civil Procedure Act s.94
• Civil Procedure Rules Order 45 Rule 5

Cases cited (2)

• Masaba v Republic [1971] EA 488
• Girado v Alam & Sons (U) Ltd [1970] EA 448

The original judgment as reported. Read the original PDF before relying on any passage.