Dubey Mohamed Godad v Mohamed Omar Ahmed & 5 others [2020] eKLR Case Summary

Court
Environment and Land Court at Garissa
Category
Civil
Judge(s)
E. C. Cherono (Mr.)
Judgment Date
October 29, 2020
Country
Kenya
Document Type
PDF
Number of Pages
3

Case Brief: Dubey Mohamed Godad v Mohamed Omar Ahmed & 5 others [2020] eKLR


1. Case Information:
- Name of the Case: Dubey Mohamed Godad v. Mohamed Omar Ahmed & Others
- Case Number: ELC Case No. 4 of 2019
- Court: Environment & Land Court at Garissa
- Date Delivered: October 29, 2020
- Category of Law: Civil
- Judge(s): E. C. Cherono (Mr.)
- Country: Republic of Kenya

2. Questions Presented:
The central legal issues before the court were whether the dismissal order made on January 31, 2020, should be set aside and whether the plaintiff's application could be reinstated for hearing.

3. Facts of the Case:
The plaintiff, Dubey Mohamed Godad, filed a Notice of Motion seeking to reinstate her application that had been dismissed for want of prosecution. The dismissal occurred when her advocate failed to attend court on January 31, 2020, due to unavoidable circumstances, although the plaintiff herself was present. The defendants, including Mohamed Omar Ahmed and others, opposed the application, arguing that the absence of the plaintiff's counsel indicated a lack of interest in pursuing the case.

4. Procedural History:
The case progressed through several stages, beginning with the plaintiff's initial application filed on April 29, 2019. The significant turning point came on January 31, 2020, when the court dismissed the application due to the absence of the plaintiff’s counsel. Following this, the plaintiff filed a new application on June 18, 2020, seeking to have the dismissal order set aside. The defendants filed a replying affidavit opposing this motion, asserting that the absence of legal representation reflected the plaintiff's disinterest in the case.

5. Analysis:
- Rules: The court considered the provisions of the Civil Procedure Act, specifically Section 1A, which emphasizes the overriding objective of facilitating just and expeditious resolution of civil disputes. The court also referenced the principles governing the setting aside of ex parte judgments as established in the case of Shah v. Mbogo (1967) EA 116.
- Case Law: In Shah v. Mbogo, the court held that discretion should be exercised to avoid injustice resulting from inadvertence or excusable mistakes, rather than to assist parties who deliberately obstruct justice. This precedent was relevant as the court evaluated the circumstances leading to the dismissal of the plaintiff's application.
- Application: The court analyzed the facts and determined that the plaintiff's presence in court demonstrated her commitment to pursuing her case, despite her counsel's absence. The court concluded that the failure of the counsel to appear was not a reflection of the plaintiff's intent to abandon her application. The judge noted the necessity for legal representation and the procedural expectations for counsel to either attend or arrange for another to represent the plaintiff.

6. Conclusion:
The court granted the plaintiff's application to set aside the dismissal order and reinstated the application for hearing. The judge emphasized the importance of allowing the plaintiff an opportunity to have her case heard on its merits, while also imposing a condition for the plaintiff to pay throwaway costs to the defendants.

7. Dissent:
There were no dissenting opinions noted in the ruling, as the decision was rendered by a single judge.

8. Summary:
The ruling in Dubey Mohamed Godad v. Mohamed Omar Ahmed & Others underscores the court's commitment to ensuring access to justice, particularly in civil matters. The decision to reinstate the plaintiff's application reflects the court's recognition of the need to balance procedural compliance with the interests of justice, allowing the plaintiff an opportunity to present her case despite the procedural missteps of her counsel. This case highlights the importance of legal representation in civil proceedings and the court's role in facilitating fair hearings.

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