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application sample for a motion to Reinstate case
Introduction
In the Kenyan legal system, a motion to reinstate a case is a formal request made to the court to restore a case that has been dismissed or struck out. This motion is typically filed when a party believes that the dismissal was unjust or that there are compelling reasons for the case to be heard again. The application must be well-drafted, citing relevant laws and providing sufficient grounds for reinstatement.
Table of Contents
Legal Framework
1.1 Civil Procedure Act
1.2 Civil Procedure Rules
1.3 Relevant Case Law
Structure of the Application
2.1 Heading
2.2 Introduction
2.3 Grounds for the Application
2.4 Supporting Affidavit
2.5 Prayers
Sample Application
3.1 Heading
3.2 Introduction
3.3 Grounds for the Application
3.4 Supporting Affidavit
3.5 Prayers
Conclusion
1. Legal Framework
1.1 Civil Procedure Act
Section 3A: This section provides the court with inherent powers to make orders necessary for the ends of justice or to prevent abuse of the court process.
1.2 Civil Procedure Rules
Order 12 Rule 7: This rule allows a party to apply for the reinstatement of a suit that has been dismissed for non-attendance.
Order 51 Rule 1: This rule outlines the general procedure for making applications to the court.
1.3 Relevant Case Law
Shah v Mbogo (1967) EA 116: This case sets out the principles for setting aside a judgment or order, emphasizing the need for the applicant to show sufficient cause.
Patel v E.A. Cargo Handling Services Ltd (1974) EA 75: This case discusses the discretion of the court in setting aside ex parte orders.
2. Structure of the Application
2.1 Heading
The heading should include the name of the court, the case number, and the names of the parties involved.
2.2 Introduction
A brief introduction stating the purpose of the application.
2.3 Grounds for the Application
Detailed grounds on which the application is based, citing relevant laws and case law.
2.4 Supporting Affidavit
An affidavit sworn by the applicant providing factual details supporting the application.
2.5 Prayers
Specific orders being sought from the court.
3. Sample Application
3.1 Heading
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT [LOCATION]
CIVIL CASE NO. [CASE NUMBER]
BETWEEN
[PLAINTIFF/APPLICANT]
AND
[DEFENDANT/RESPONDENT]
3.2 Introduction
NOTICE OF MOTION
(Under Section 3A of the Civil Procedure Act, Order 12 Rule 7, and Order 51 Rule 1 of the Civil Procedure Rules)
TAKE NOTICE that the Honourable Court will be moved on [date] at [time] or soon thereafter as counsel for the Applicant may be heard on behalf of the Applicant for ORDERS:
1. THAT this Honourable Court be pleased to reinstate the suit herein which was dismissed on [date].
2. THAT the costs of this application be in the cause.
3.3 Grounds for the Application
This application is based on the following grounds:
1. THAT the suit was dismissed on [date] for non-attendance.
2. THAT the non-attendance was not intentional but due to [provide reasons, e.g., inadvertent mistake, illness, etc.].
3. THAT the Applicant has a meritorious case with high chances of success.
4. THAT it is in the interest of justice that the suit be reinstated for hearing and determination on its merits.
5. THAT no prejudice will be occasioned to the Respondent if the suit is reinstated.
3.4 Supporting Affidavit
SUPPORTING AFFIDAVIT
I, [Name of Applicant], of P.O. Box [Address], do hereby make oath and state as follows:
1. THAT I am the Applicant herein and therefore competent to swear this affidavit.
2. THAT the suit herein was dismissed on [date] for non-attendance.
3. THAT my non-attendance was due to [provide detailed reasons].
4. THAT I have a meritorious case as evidenced by [provide brief details of the case].
5. THAT it is in the interest of justice that the suit be reinstated.
6. THAT I swear this affidavit in support of my application for reinstatement of the suit.
7. THAT what is deponed to herein is true to the best of my knowledge, information, and belief.
SWORN at [Location] by the said [Name of Applicant]
this [date].
_____________________
DEPONENT
BEFORE ME
_____________________
COMMISSIONER FOR OATHS
3.5 Prayers
PRAYERS
WHEREFORE, the Applicant prays for the following orders:
1. THAT this Honourable Court be pleased to reinstate the suit herein which was dismissed on [date].
2. THAT the costs of this application be in the cause.
Conclusion
Filing a motion to reinstate a case requires careful adherence to the legal framework provided by the Civil Procedure Act and the Civil Procedure Rules. The application must be well-drafted, citing relevant laws and providing sufficient grounds for reinstatement. By following the structure outlined above, you can ensure that your application is comprehensive and persuasive, increasing the likelihood of a favorable outcome.
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