[2018] KEHC 5273 (KLR)
The court found that the reasons advanced by the applicants' counsel for failing to attend court were justified, specifically that the counsel holding brief was not present when the matter was called out. The court determined that the interests of justice required the reinstatement of the application to allow for a...
Source-derived case information.
- Citation
- [2018] KEHC 5273 (KLR)
- Parties
- Applicant: Joseph Obura Nyangaga; Applicant: Hudson Kariuki Nguuro; Applicant: Anwar Aliislam; Respondent: Resident Magistrate’s/County Court, Mombasa; Respondent: The D.P.P.; Interested Party: Amirali Hassanali Mohamed
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Judicial Review 10 of 2018
- Procedural Posture
- Judicial Review / Ruling on Application to Set Aside Dismissal and Reinstate Motion
- Outcome
- application allowed
- Judges
- DO Ogembo
- Legal Topics
- Reinstatement of Application, Dismissal for Non Attendance, Judicial Review Orders, Leave to Apply for Certiorari, Stay of Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Obura Nyangaga
Applicant
Hudson Kariuki Nguuro
Applicant
Anwar Aliislam
Applicant
Resident Magistrate’s/County Court, Mombasa
Respondent
The D.P.P.
Respondent
Amirali Hassanali Mohamed
Interested Party
Procedural Posture
Judicial Review / Ruling on Application to Set Aside Dismissal and Reinstate Motion
Legal Issues
- 1 Whether the dismissal of the applicants' motion for want of prosecution and/or non-attendance should be set aside and the application reinstated.
- 2 Whether the failure to attend court by the applicants' counsel was justified and excusable.
Ratio Decidendi
The court found that the reasons advanced by the applicants' counsel for failing to attend court were justified, specifically that the counsel holding brief was not present when the matter was called out. The court determined that the interests of justice required the reinstatement of the application to allow for a fair determination of the substantive issues raised in the main motion. The affidavit by one applicant raising issues about authority to file the suit was noted as a matter for the main application, not for the procedural reinstatement. Accordingly, the court allowed the application to set aside the dismissal and reinstated the motion for hearing.
Court Disposition
application allowed
Orders
- The Notice of Motion application dated 6th April, 2018 is allowed as prayed with costs in the cause.
Full Case Text
Judgment text and source record
39 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CONSTITUTIONAL & JUDICIAL REVIEW DIVISION
JUDICIAL REVIEW NO. 10 OF 2018
IN THE MATTER OF: AN APPLICATION FOR LEAVE TO
APPLY FOR JUDICIAL REVIEW ORDER OF CERTIORARI
AND
IN THE MATTER OF: THE RESIDENT MAGISTRATE’S MOMBASA
BETWEEN
1. JOSEPH OBURA NYANGAGA
2. HUDSON KARIUKI NGUURO
3. ANWAR ALIISLAM...............................................APPLICANTS
AND
1. RESIDENT MAGISTRATE’S/COUNTY COURT, MOMBASA
2. THE D.P.P.............................................................RESPONDENTS
AND
AMIRALI HASSANALI MOHAMED..........INTERESTED PARTY
RULING
The Application
1. The application before the court is a Notice of Motion dated 6th April, 2018. The motion seeks as the main order that the order made on 12th March, 2018 dismissing the Applicants’ application dated 13th February, 2018 for want of prosecution and/or non-attendance be set aside and the said application be reinstated. The application is premised on the grounds set out therein and is supported by affidavit of Samuel Odhiambo Eleakim sworn on 6th April, 2018.
2. The Applicants’ case is that the counsel handling the matter instructed Mr. Obara Advocate to hold his brief and Mr. Obara also requested Mr. Mutiso Advocate to deal with the matter but the matter was called out/mentioned when Mr. Mutiso Advocate had stepped out of court. The Applicant’s case is that leave to file an application for certiorari and prohibition was given on 16th February, 2016 and which application was filed on 5th March, 2018 what remains is the hearing of application for orders that leave do operate as stay. The Applicant avers that failure to attend court was not intentional but due to the fact that the counsel who was holding brief was not in court when the matter was called out. It is submitted that the application is merited and the Nominal Applicants stand to be prejudiced if the criminal case in the lower court proceeds yet the Notice of Motion has been filed and that no prejudice will be caused and/or suffered by the Respondents and Interested Party as the reinstatement of the application will allow the court to determine whether or not leave should operate as stay.
The Response
3. The application is opposed, ironically, by an affidavit sworn by one of the Applicants Hudson Kariuki Nguuro on 12th June, 2018 and Grounds of Objection filed on 13th February, 2018. Mr. Nguuro brings in a new element to the suit by claiming that the suit allegedly filed on his behalf ws not done with his authority.
4. Mr. Masila for the Interested Party submitted that the application was dismissed on merit for non-attendance and should not be revived. On their part Mr. Mwandeje for the 1st Respondent supported the application in his submissions but did not file a response.
The Determination
5. I have carefully considered the application. In my view the reasons given by Mr. Odhiambo for failure to attend the court are justified. The affidavit of Mr. Hudson Kariuki Nguuro raises serious issues but with the main application.
6. For now I am satisfied that the application before the court is merited and should be allowed for the just determination of the issues raised in the main motion,
7. Accordingly therefore, I make the following orders:
(a) The Notice of Motion application dated 6th April, 2018 is allowed as prayed with costs in the cause.
Orders accordingly.
Dated, Signed and Delivered at Mombasa this 23rd day of July, 2018.
E. K. OGOLA
JUDGE
In the presence of:
Mr. Obara holding brief Odhiambo for Ex parte Applicant
Ms. Kitoo holding brief Masila for Interested Party
Mr. Mwandeje for 1st Respondent
Mr. Kaunda Court Assistant