[2016] KEHC 1088 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAKURU

CIVIL APPEAL NUMBER 189 OF 2012

1. BOROP MULTIPURPOSE CO-OPERATIVE

SOCIETY LIMITED...........................................1ST APPELLANT/APPLICANT

2. JOHN ROTICH.................................................2ND APPELLANT/APPLICANT

VERSUS

DOUNE FARM LIMITED …........................................................RESPONDENT

(An appeal from the Judgment and decree delivered on the 2nd of October, 2012, by S. Soita (Mr) Principal Magistrate in Molo PMCC No. 80 of 2005

RULING

1. The appellants filed this appeal on the 1st November 2012 in person. On the 11th October 2013, they appointed the firm of Arusei & Company Advocates to act for them and on the 8th August 2014 they wrote to the Deputy Registrar of the court to have the court file of the case appealed from availed in this court to facilitate taking directions under Order 41 rule 4 of the Civil Procedure Rules.

2. On 2nd May 2013 the Respondents Advocates, Kipkoech B. Ngetich requested that the trial court file be returned to Molo PM's court to enable them tax their bill of costs.

On the 1st April 2005, the firm of Gordon Ogola, Kipkoech and Company Advocates filed their representation of the Respondent in court and thereafter a Bill of costs in present appeal and served the appellant advocates. It is then that the appellants came to know that their appeal was dismissed on the 7th July 2015 pursuant to a Notice to show cause why the appeal should not be dismissed issued by the Deputy Registrar of this court dated 3rd June 2015.

3. By their application dated 27th January 2016, the appellants through their Advocates Arusei & Co. Advocates approached the court for Orders:

1. That this court be pleased to stay taxation of the Respondents party to party bill of costs dated 4th August 2015 and fixed for taxation on the 1st February 2016 or any other day thereafter and any consequential orders be stayed pending hearing and determination of the application for reinstatement of the appeal.

2. That the order of dismissing the appellants appeal for want of prosecution on the 7th July 2015 be varied, discharged and or set aside and upon reinstatement directions be taken as to the hearing of the appeal.

4. In the appellant's supporting affidavit and grounds upon which the application is made, the Second appellant, John K. Rotich submits that the Notice to show cause was not served upon their advocates and therefore they had no notice of the same upto the time they were served with the taxation Notice of the respondents of their party to party bill of costs on the 22nd January 2016. It is submitted that the Notice to show cause was served upon the firm of J.K. Bosek & Co. Advocates in 2012 and the current Advocates came on record by a Notice of Appointment dated 10th October 2013 and filed on the 11th October 2013.

5. The Respondent in response to the application by replying affidavit sworn on the 8th February 2016 by Kipkoech B. Ngetich Advocate deposes that it was the duty of the court to serve the appellants advocates with the Notice to show cause and that the court dismissed the appeal for want of prosecution upon due to their laches. He did not answer to the question whether or not the appellants advocates were indeed served with the Notice to show cause leading to the dismissal.

6. I have considered the pleadings, affidavit evidence and the issues raised in the application.

Service of court process to parties to a suit is paramount. No party should be condemned unheard as Rules of natural justice demand that all parties be given an opportunity to present their cases before the court.

I have looked a the Notice to show cause issued by the Deputy Registrar on the 30th June 2015 for hearing on the 7th July 2016. It is addressed to M/S Gordon Ogola Kipkoech and Company Advocates for the Respondents and J.K. Bosek & Company Advocates. It is evident that no Notice to show cause was directed to or served upon the appellants Advocates Arusei & company advocates. The notice of appointment of Arusei & Company Advocates in place of J.K. Bosek & Co. Advocates is in the court file. It was the duty of the Deputy Registrar to serve the Notice to show cause upon the correct advocates for the appellant before the notice to show cause was listed for hearing on the 7th July 2016.

7. For those reasons, I find that the application is merited. Issues of whether or not the appeal has merit is premature as at this stage, the only issue before the court is one of service. It is my considered opinion that failure to serve court process goes to the root of litigation, and that a party ought not be condemned unheard where there is failure of service of process. See Omega Enterprises (K) Ltd -vs- KTDA & Others – Civil Appeal No. 59 of 1993where the judges while setting aside an exparte order without the appellant being given the opportunity to be heard was clearly against natural justice and attracts ex-debito justice the right to have it set aside.

8. For those reasons, the order of dismissal of the appeal issued on the 7th July 2016 is set aside and the appeal reinstated.

Consequently, the respondents party and Party bill of costs dated 4th August 2015 being consequential to the dismissal of the appeal has no legs to stand on. It is struck out.

9. Each party shall bear its own costs of the application.

Date, signed and delivered in open court this 15th day of September 2016.

JANET MULWA

JUDGE