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Dover Insurance Agency Ltd v. UAP Provincial Insurance Company Ltd

(2000) JELR 102642 (CA)

Court of Appeal  •  Civil Appeal 240 of 1999  •  4 Oct 2000  •  Kenya

Samuel Elikana Ondari Bosire, Richard Otieno Kwach, Moijo Matayia Ole Keiwua



The appellant as defendant in Nairobi High Court Civil Case No. 611 of 1999, applied before that court under Order 6 rule 13 of the Civil Procedure Rules for an order striking out the plaint in the suit, on the ground that the suit had been filed prematurely. On the date that application was due for hearing only the respondent, as plaintiff, appeared. At the request of its counsel the application was dismissed for nonattendance of the applicant, which is the appellant herein. Its application to set aside the order of dismissal, which was expressed to be brought under Order IXB rule 8 Civil Procedure Rules, was dismissed by Jeane W. Gacheche, a Commissioner of Assize, on the ground that it lacked any merits.

In the appeal before us, the appellant contends that the learned Commissioner of Assize improperly exercised her discretion in refusing to vacate the aforesaid dismissal order. There is no indication that the learned Commissioner omitted to take into account an…

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