[2017] KEHC 3024 (KLR)
The court found that the applicants' counsel's non-attendance on 17.5.17 was satisfactorily explained by the misleading information on the official cause list, which indicated that the judge would not be sitting and that all matters were to be mentioned before the Deputy Registrar. The court was satisfied that the...
Source-derived case information.
- Citation
- [2017] KEHC 3024 (KLR)
- Parties
- Applicant: Monica Aluoch Otieno; Applicant: Robert Omolo Osawo; Applicant: Alsamus Obiya Odongo; Applicant: Joseph Bwoga Amata; Respondent: Joseph Bwoga Ondijo
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 247 of 2011
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Set Aside Dismissal Order
- Outcome
- application allowed; dismissal order set aside; application reinstated for hearing on merits
- Legal Topics
- Setting Aside Orders, Non Attendance, Court Registry Error
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Monica Aluoch Otieno
Applicant
Robert Omolo Osawo
Applicant
Alsamus Obiya Odongo
Applicant
Joseph Bwoga Amata
Applicant
Joseph Bwoga Ondijo
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Dismissal Order
Legal Issues
- 1 Whether the order dismissing the application dated 10.4.17 for non-attendance should be set aside.
- 2 Whether the applicants' counsel's non-attendance was justified by misleading information from the court registry.
Ratio Decidendi
The court found that the applicants' counsel's non-attendance on 17.5.17 was satisfactorily explained by the misleading information on the official cause list, which indicated that the judge would not be sitting and that all matters were to be mentioned before the Deputy Registrar. The court was satisfied that the applicants should not be penalized for relying on official court information. Accordingly, the order dismissing the application for non-attendance was set aside, and the application was reinstated for hearing on its merits.
Court Disposition
application allowed; dismissal order set aside; application reinstated for hearing on merits
Orders
- The notice of motion dated 20.6.17 is allowed and the order dated 17.5.17 dismissing the application dated 10.4.17 for non-attendance is set aside.
- The notice of motion dated 10.4.17 shall be listed for hearing on merit.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU
MISC. CIVIL APPLICATION NO. 247 OF 2011
IN THE MATTER OF REFERENCE UNDER RULE 11 (2) OF THE ADVOCATES (REMUNERATION) ORDER UPON TAXATION OF PARTY AND PARTY COSTS
BETWEEN
MONICA ALUOCH OTIENO....................................................................1ST APPLICANT
ROBERT OMOLO OSAWO....................................................................2NDAPPLICANT
ALSAMUS OBIYA ODONGO..................................................................3RD APPLICANT
JOSEPH BWOGA AMATA………..........................................................4TH APPLICANT
VERSUS
JOSEPH BWOGA ONDIJO........................................................................RESPONDENT
RULING
By a notice of motion dated 20. 6.17 brought under Order 12 rule 7 of the Civil Procedure Rules and section 1A, 1B and 3A of the Civil Procedure Act and all enabling provisions of the Law; the applicants pray for orders that:
1. The Honourable Court be pleased to set aside the orders dated 17. 5.17 dismissing the application dated 10. 4.17 for non-attendance
2. Upon granting prayer 1, the Honourable Court be pleased to set a hearing date for the said application dated
3. Costs of the application be provided for
The application is based on the grounds among others that the applicant was misled by the Court Registry that the judge would not be sitting on the day the order of dismissal was made.
The application is supported by an affidavit sworn on 20. 6.17 by Robert OumaNjoga, advocate for the applicants who reiterates the grounds on the face of the application. Attached to the affidavit is a copy of the High Court Cause list for 17. 5.17 markedRON 1which indicates that Hon. Majanja J. was not sitting on that date and that all the matters listed before him were to be mentioned before the Deputy Registrar.
The replying affidavit sworn on 8. 5.17 by the respondent is a reply to an application dated 10. 4.17 and not the present application.
I have considered the application in the light of the supporting affidavit. A copy of the High Court Cause list for 17. 5.17 shows that the application dated 10. 4.17 was listed for hearing on that date before Hon. Justice Majanja. The same cause list shows that the judge was not sitting on that date and that all matters were to be mentioned before the deputy Registrar.
The applicant’s counsel’s non-attendance before the judge on the day the application dated 10. 4.17 was dismissed has been clearly explained and the court is satisfied that the information on the cause list was misleading.
Consequently, it is hereby orderedTHAT:-
1) The notice of motion dated 20. 6.17 be and is hereby is allowed and the order dated 17. 5.17 dismissing the application dated 10. 4.17 for non-attendance is set aside
2) Notice of motion dated 10. 4.17 be listed for hearing on merit
3) Costs shall be in the cause
DATED AND DELIVERED THIS12thDAY OFOctober, 2017
T.W.CHERERE
JUDGE
Read in open court in the presence of-
Court Assistant - Felix
Applicants - N/A
Respondent - N/A