[2022] KEHC 12632 (KLR)

Anti-Counterfeit Agency & another v Kariuki & 2 others (Civil Appeal 64 & 68 of 2019 (Consolidated)) [2022] KEHC 12632 (KLR) (8 July 2022) (Ruling)

Neutral citation: [2022] KEHC 12632 (KLR)

Republic of Kenya

In the High Court at Kakamega

Civil Appeal 64 & 68 of 2019 (Consolidated)

WM Musyoka, J

July 8, 2022

Between

Anti-Counterfeit Agency

1st Appellant

Crown Paints

2nd Appellant

and

Peter Mbaria Kariuki

1st Respondent

The Attorney General

2nd Respondent

The Inspector General Of The National Police Service

3rd Respondent

(Being an appeal from the judgment of Hon. H. Wandere, Senior Principal Magistrate (SPM), delivered on the 11th June, 2019, in Kakamega CMCCC No. 264 of 2016))

Ruling

1. The motion, dated May 4, 2021, is by the appellant for the setting aside of the proceedings and consequential orders made on May 3, 2021, and for the reinstatement of a motion, dated April 19, 2021.

2. The grounds and the factual background to the application are set out on the face of the application and the affidavit in support, sworn on May 4, 2021 by Kihenjo Ruth Wacuka, Advocate. Principally, she states that she was waiting online to be heard virtually, and, as it was Covid 19 time, there were protocols in place on restriction of movement and contact, and she did not expect a physical hearing.

3. The 1st respondent filed grounds of opposition, dated May 17, 2021, essentially stating that the application was not merited.

4. The application was canvassed both orally and in writing. I have perused through the written submissions and the record of the oral submissions, and noted the argument made. I have noted too the authorities cited by the parties.

5. When the matter was initially placed before me on April 19, 2021, under certificate of urgency, I directed that if be served and heard inter partes on May 3, 2021. I also granted interim relief. Come May 3, 2021, only Mr Abok, Advocate for the 1st respondent, was in court. He informed me that he had been served with notice that the matter was coming up that day, but he could not see his opponents. It was after 11. 00am. No advocate held brief for the Advocates for the appellants, and I did not get any indication that any Advocate was waiting online to address the court virtually. Mr Abok invited me to dismiss the application for non-attendance and want of prosecution, which I did.

6. The affidavit in support of the application is sworn by the Advocate for the appellant. She avers to have been waiting online and to have had been in contact with court officers, alerting them that she was waiting online. I have no way of verifying that, and I cannot vouch for its truthfulness. However, the deponent of the affidavit is an officer of this court. I shall take her by her word, and give her the benefit of the doubt. I also take note of the fact that it was Covid-19 time. There were protocols discouraging travel, and working remotely was actively promoted.

7. Setting aside of orders is discretionary. See Shah vs. Mbogo [1967] EA 116 (Harris J Discretion could be exercised to prevent hardship. Dismissal of court process is usually a drastic step, whose effect is to drive parties away from the seat of justice, effectively denying them access to justice. It is draconian, but permissible where there is evidence of indolence and abuse of process.

8. I note that, after I made the orders of April 19, 2021, the appellants served their application timeously, hence the attendance in court by Mr Abok on May 3, 2021. After I made the dismissal orders on May 3, 2021, the appellants filed the motion, dated May 4, 2021, in court on May 5, 2021. This is a display of diligence and keenness on the part of the appellants to pursue their matter. It lends credence to the claim by Ms Kihenjo that there was a mix-up on May 3, 2021, in the sense that while she was waiting online, the matter was proceeding physically. There could have been a miscommunication or lack of proper communication between the court and Ms Kihenjo. The appellants deserve to be given a second chance.

9. Consequently, I do hereby allow the motion, dated May 4, 2021. I hereby set aside the orders of May 3, 2021, and reinstate the motion, dated April 19, 2021, inclusive of the interim orders issued on April 19, 2021. The said orders are hereby extended. The application shall be canvassed by way of written submissions, to be highlighted on a date to be allocated by the Deputy Registrar, and notified to the parties. It is so ordered.

RULING DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA ON THIS 8THDAY OF JULY, 2022W.M. MUSYOKAJUDGEMr. Erick Zalo, Court Assistant.Ms. Kihenjo, instructed by Kiingati Ndirangu & Associates, Advocates for Crown Paints.Mr. Adera, Advocate for the Anti-Counterfeit AuthorityMr. Abok, instructed by Abok Odhiambo & Company Advocates, for the 1st respondent.