[2022] KEHC 12909 (KLR)

Aisha Motor Dealers Ltd & another v Musyoki (Civil Miscellaneous E286 of 2020) [2022] KEHC 12909 (KLR) (Civ) (7 July 2022) (Ruling)

Neutral citation: [2022] KEHC 12909 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Miscellaneous E286 of 2020

DO Chepkwony, J

July 7, 2022

Between

Aisha Motor Dealers Ltd

1st Applicant

Geoffrey Mwaniki

2nd Applicant

and

Catherine Nthambi Musyoki

Respondent

Ruling

1. This matter coming up for Ruling on a Notice of Motion application dated November 15, 2020 which seeks for an order to setting aside and/or varying the dismissal orders issued on September 23, 2021 and reinstate the Applicant’s application dated July 2, 2020 for hearing.

2. The grounds adduced in support of the application, and which are further reiterated in the affidavit of the Applicant’s advocate, Mr. Mandela K. Chege sworn on November 15, 2021 are that the Applicants had filed an application dated July 2, 2020 seeking leave to file an appeal out of time on a Judgment delivered on December 13, 2019 in Milimani CMCC No.3098 of 2010. That application was however listed for dismissal on 23rd September, 2021 and eventually dismissed for non-attendance because the advocate on record did not diarize the said date. She added that the Respondent had filed a declaratory suit in CMCC No.7619 of 2020 seeking the Applicants to satisfy the decretal sum and that suit is pending a Ruling on dismissal of the defence thereof.

3. According to the Applicants, if the Ruling in CMCC No.7619 of 20202 is delivered, and their defence dismissed, then their right of appeal under the present suit will be put into jeopardy and it is only imperative that the application dated July 2, 2020 is re-instated to avoid such hardships.

4. The Respondent opposed the application through the Replying Affidavit sworn by her advocate, Nelson Kaburu Felix on December 6, 2021. The learned counsel took issue with the application subject of this Ruling and described it to have been made on mere speculation for among other reasons, that the Motion sought to be reinstated, which is dated July 2, 2020 was lastly in court on June 21, 2021 but the Applicant’s advocate failed to attend court. The Respondent’s counsel sought the Motion to be dismissed but the court declined to grant the dismissal orders. He alluded that the notice for dismissal amended to the present application completely relates to a different cause of action.

5. In the submissions dated March 14, 2022, the Respondent’s counsel implored the court to peruse its record before even considering the application on merit.

6. On their part, despite numerous invites and indulgence to file their submissions, the Applicants never filed their submissions.

Analysis and Determination 7. I have considered the application at hand and the rivalry affidavits and submissions filed by the Respondent. However, before I delve into the merits of the application, I have taken liberty to ascertain the correctness of the averments made by learned counsel, Mr. Mandela K. Chege made on oath on November 15, 2021. The said counsel swore that he had prepared and filed the Notice of Motion dated 2nd July, 2020 and that it was within his knowledge that the present matter was placed for dismissal and indeed dismissed on September 23, 2021, thus necessitating the present application for reinstatement of the application dated July 2, 2020.

8. I have taken time to read the court record, not one or twice, but more than three times to ascertain the true position in the matter. The record speaks for itself and it reflects the chronology of events starting from August 11, 2020 when the application dated July 2, 2020 was placed before court under Certificate of Urgency. Interim stay of execution order was granted on that date and the matter was thereafter listed for interparties hearing on June 21, 2021. When the court reconvened on June 21, 2021 only Mr. Kaburu, counsel for the Respondent showed up while the Appellants were unrepresented. Nonetheless the court directed that the matter be stood over generally.

9. Thereafter, neither of the parties took steps to prosecute the matter and it was listed on November 23, 2021 when the present application dated November 15, 2021 was placed before court in Chambers. The record therefore confirms that there was no entry or any order issued on 23rd September, 2021 dismissing the application dated July 2, 2020. Better still, the record does not show that orders were ever issued dismissing the application dated July 2, 2020.

10. It then follows that the application subject of this Ruling was filed without proper foundation and is based on speculations. The affidavit in support thereof is even sworn by an advocate who is enjoined by his code of conduct to assist the court in attaining its core objectives but he has represented a worrying tract similar to that of a rumour monger, which is highly unbecoming of a person of the status of an advocate of the High Court of Kenya, hence he should be condemned to bear costs arising from such carelessness.

11. Consequently, this court dismisses the application dated November 15, 2021 with orders that costs of the application be borne personally by the Applicants’ counsel.Orders accordingly.

RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT NAIROBI THIS 7TH DAY OF JULY, 2022. D. O. CHEPKWONYJUDGEIn the presence of:Mr. Lusweti counsel holding brief for M/S Mugo counsel for ApplicantMr. Kaburu counsel for the RespondentCourt Assistant - Kevin