[2015] KEHC 1459 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL CASE NO. 196 OF 2015

THE LAW SOCIETY OF KENYA ......................................................................PLAINTIFF

VERSUS

FAITH WAIGWA .....................................................................................1ST DEFENDANT

WAMBUGU GITONGA ..........................................................................2ND DEFENDANT

ALEX GATUNDU....................................................................................3RD DEFENDANT

KIMANI WAWERU ..................................................................................4TH DEFENDANT

JACQUELINE MANANI ...........................................................................5TH DEFENDANT

EDWIN SIFUNA ........................................................................................6TH DEFENDANT

ALUSO INGATI ........................................................................................7TH DEFENDANT

KINYANJUI THEURI ................................................................................8TH DEFENDANT

CHARLES KANJAMA .....................................................................INTERESTED PARTY

RULING

On 13th October 2015, learned counsels appearing in this matter made oral arguments to seek for the directions of this court on whether or not it serves any useful purpose to continue the pursuit of the motion dated 28. 05. 2015.

Mr. Masika learned advocate for the 1st, 2nd and 5th defendants was of the view that it serves no useful purpose to pursue the aforesaid motion because the time which the meeting the application intended to stop has lapsed by operation of law hence there is no possibility of holding the same. Mr. Mureithi learned advocate for the 3rd and 8th Defendants and holding brief for Mr. Anzala learned advocate for 4th and 7th Defendants was of the same view as that of Mr. Masika. Mr. Sifuna, the 6th Defendant was of the same argument as Mr. Masika and Mr. Mureithi.

Mr. Kimuli, learned advocate for the plaintiff was of the view that this court can confirm the interim order in terms of prayer 3 of the aforesaid motion pending the hearing and the determination of the suit with no order as to costs.

Mr. Kanjama, the interested party herein was of the view that the motion should be heard since prayer 3 and 5 are still relevant and critical to the main suit. He was of the view that timelines set under Section 31 of the Law Society of Kenya Act stopped running when the interim orders were issued hence they should be determined.

Mr. Masika conceded to prayer 3 of the aforesaid motion in response to the submissions of Mr. Kanjama and those of Mr. Kimuli. Mr. Masika further asked this court to give directions on the way forward the motion for amendment dated 5th August 2015. Parties were in agreement with the proposal of Mr. Masika

I have carefully considered the oral submissions of learned counsels together with those of the 6th Defendant and the Interested Party. This court has been invited to give directions on whether it serves any useful purpose to continue with the hearing of the motion dated 28th May 2015. In essence, the defendants are of the view that they are ready to concede for prayer 3 of the motion to be granted pending the hearing and determination of the suit. The Plaintiff is not averse to the proposal. The Interested Party is of the view that prayers 3 and 5 of the motion should be heard and determined. The main players in this suit i,e the Plaintiff and the Defendants are for the view that the interlocutory notice of motion dated 28. 05. 2015 should be compromised and allowed in terms of prayer 3 while the other prayers should be dispensed with to pave way for the hearing substantive suit. With respect, I have no reason why I should decline the request.

What delayed hearing of the aforesaid motion were the intervening applications in which parties from each side of the divide successfully applied to have the deponents of various affidavits which had been filed in support or against the motion to be summoned for cross-examination before the applications could be heard and determined. It is apparent that prayer 5 is specifically sought by the Plaintiff and not by the Interested Party. The Plaintiff is not opposed in having that prayer dispensed with. The effect of the directions sought, is that even the orders summoning various deponents for cross-examination will have to be vacated. In my view I do not think that if the order is given any party will suffer any prejudice, because when the suit eventually comes up for substantive hearing, an opportunity to cross-examine those parties will arise.

In the final analysis, I am satisfied that there is need to determine at this stage the fate of the motion dated 28th may 2015 to pave way for the expeditious disposal of this suit. Consequently, I make the following orders on directions.

I grant prayer 3 of the notice of motion dated 28. 05. 2015 pending the substantive hearing of this suit.

That prayers 4, 5 and 6 are dispensed with and marked abandoned.

The orders issued to summon deponents of various affidavits for cross-examination are set aside.

The motion dated 5th August 2015 is fixed for interpartes hearing on 4/11/2015 at 2. 30pm

In the meantime parties are directed to comply with the provisions of the order 11 of the Civil Procedure Rules so that a pre-trial conference date is set.

Costs shall abide the outcome of this suit.

Dated and delivered in open court this 26th day of October, 2015.

J. K. SERGON

JUDGE

In the presence of:

Miss Kayugira h/b Ongoya . for the Plaintiff

Mr. Masika h/b Okero for the 1st, 2nd and 5th Defendants

Mr. Anzala hlb Mureithi for 3rd and 8th Defendants

Mr. Anzala for the 4th and 7th Defendants

N/A for Mr. Sifuna, 6th Defendant

N/A for kanjama Interested Party.