Kamimi Company (1976) Ltd & another (Suing on his own behalf and on behalf of other Residents of Mombasa North, Mtwapa Mombasa v Bamburi Cement Limited [2020] eKLR Case Summary

Court
High Court of Kenya at Mombasa
Category
Civil
Judge(s)
P.J.O. Otieno
Judgment Date
October 09, 2020
Country
Kenya
Document Type
PDF
Number of Pages
3
Explore the case summary of Kamimi Company (1976) Ltd and others vs. Bamburi Cement Limited [2020] eKLR, focusing on legal implications for Mombasa residents. Learn about the dispute and outcome that shapes community rights.

Case Brief: Kamimi Company (1976) Ltd & another (Suing on his own behalf and on behalf of other Residents of Mombasa North, Mtwapa Mombasa v Bamburi Cement Limited [2020] eKLR

1. Case Information:
- Name of the Case: Kamimi Company (1976) Ltd & Dr. Munyua Waiyaki v. Bamburi Cement Limited
- Case Number: Civil Suit No. 591 of 2001
- Court: High Court of Kenya
- Date Delivered: October 9, 2020
- Category of Law: Civil
- Judge(s): P.J.O. Otieno
- Country: Kenya

2. Questions Presented:
The central legal issues in this case revolve around whether the court should review and set aside an order made on March 3, 2020, which dismissed the plaintiffs' application due to their counsel's failure to attend court. Specifically, the court must determine if the dismissal was justified or if the plaintiffs should be allowed to present their case based on inadvertent mistakes made by their counsel.

3. Facts of the Case:
The plaintiffs, Kamimi Company (1976) Ltd and Dr. Munyua Waiyaki, brought a motion seeking to reinstate their application which had been dismissed for non-attendance on March 3, 2020. The plaintiffs argued that the dismissal was due to their counsel's inadvertent failure to diarize the court date. They contended that this mistake should not bar them from having their application heard, especially since they acted promptly upon learning of the dismissal. The defendant, Bamburi Cement Limited, opposed the motion, claiming that the plaintiffs had shown gross indolence over the 19 years of litigation and that reinstating the application would prejudice their defense.

4. Procedural History:
The case progressed through the High Court, where the plaintiffs filed a Notice of Motion seeking to set aside the dismissal order. The defendant submitted a statement of grounds of opposition, arguing that the plaintiffs had not taken the matter seriously over the years. The court heard oral arguments from both parties regarding the history of the case and the conduct of the plaintiffs and their counsel.

5. Analysis:
- Rules: The court considered the principles of justice and the right of a litigant to be heard. It emphasized that a default should not automatically prevent access to justice and that mistakes made by counsel should not unfairly penalize their clients.
- Case Law: The court referenced the case of Bupinder Singh Dogra v. Coast Development Authority [2019] eKLR, where it was held that a blunder by counsel should not prevent a party from being heard. This precedent supports the notion that the court should allow parties to rectify mistakes that do not stem from deliberate obstruction of justice.
- Application: The court accepted that the failure to attend court and file submissions was due to a mistake by counsel rather than an intentional act to delay proceedings. It determined that the plaintiffs should not be condemned unheard due to this error. Consequently, the court set aside the default order and reinstated the application dated September 18, 2018, while imposing costs on the plaintiffs for the inconvenience caused to the defendant.

6. Conclusion:
The court ruled in favor of the plaintiffs by reinstating their application and setting aside the dismissal order made on March 3, 2020. This decision underscores the court's commitment to ensuring access to justice, even in cases where procedural errors occur, provided they are not the result of deliberate misconduct.

7. Dissent:
There were no dissenting opinions recorded in this case. The ruling was unanimous in favor of allowing the plaintiffs to proceed with their application.

8. Summary:
The High Court of Kenya reinstated the plaintiffs' application after finding that the dismissal was due to a mistake by counsel. The court emphasized the importance of allowing litigants their day in court and the principle that inadvertent errors should not preclude access to justice. The decision highlights the court's role in balancing procedural integrity with the rights of parties to be heard, reinforcing the notion that justice should not be denied due to human error.

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