[2024] KEHC 533 (KLR)
The court found that although the applicants' advocate failed to appear when the matter was called out, a representative had earlier requested the file be placed aside. In the absence of any opposition from the respondents or the Interested Party, and in the interest of justice, the court exercised its discretion to...
Source-derived case information.
- Citation
- [2024] KEHC 533 (KLR)
- Parties
- Applicant: Jacob Mutuku Musau; Applicant: Sylvester Mbuli Mbuvi; Applicant: Amos Mutuku Musyoka; Applicant: Patrick Karanja Njau; Respondent: Mombasa County Criminal Investigating Officer (CCIO); Respondent: Director of Public Prosecution; Interested Party: G4s Kenya Limited
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 19 of 2020
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application to Set Aside Dismissal and Reinstate Application
- Outcome
- Application to set aside dismissal order allowed; application reinstated subject to payment of costs.
- Judges
- A. Ong’injo
- Legal Topics
- Reinstatement of Application, Dismissal of Suit, Costs Award, Right to Be Heard
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jacob Mutuku Musau
Applicant
Sylvester Mbuli Mbuvi
Applicant
Amos Mutuku Musyoka
Applicant
Patrick Karanja Njau
Applicant
Mombasa County Criminal Investigating Officer (CCIO)
Respondent
Director of Public Prosecution
Respondent
G4s Kenya Limited
Interested Party
Procedural Posture
Miscellaneous Criminal Application / Ruling on Application to Set Aside Dismissal and Reinstate Application
Legal Issues
- 1 Whether the dismissal order made on 5.10.2023 should be set aside and the application reinstated.
- 2 Whether the applicants should be granted another opportunity to prosecute their case.
- 3 Whether costs should be awarded to the Interested Party for the inconvenience caused.
Ratio Decidendi
The court found that although the applicants' advocate failed to appear when the matter was called out, a representative had earlier requested the file be placed aside. In the absence of any opposition from the respondents or the Interested Party, and in the interest of justice, the court exercised its discretion to set aside the dismissal order and reinstate the application. However, the applicants were penalized by an award of thrown away costs to the Interested Party. The court emphasized that this was the last opportunity for the applicants to prosecute their case, failing which the application would stand dismissed. The orders were made to balance the applicants' right to be heard...
Court Disposition
Application to set aside dismissal order allowed; application reinstated subject to payment of costs.
Orders
- The dismissal order of 5.10.2023 is set aside.
- The applicants' application is reinstated for hearing on merit.
Full Case Text
Judgment text and source record
30 paragraphs
Musau & 3 others v Mombasa County Criminal Investigating Officer (CCIO) & another; G4s Kenya Limited (Interested Party) (Miscellaneous Criminal Application 19 of 2020) [2024] KEHC 533 (KLR) (25 January 2024) (Ruling)
Neutral citation: [2024] KEHC 533 (KLR)
Republic of Kenya
In the High Court at Mombasa
Miscellaneous Criminal Application 19 of 2020
A. Ong’injo, J
January 25, 2024
IN THE MATTER OF AN APPLICATION UNDER ARTICLES 165(3), 2, 10, 19, 20(1) (2) (3) (4), 21 AND 22 OF THE CONSTITUTION OF KENYA 2010 AND IN THE MATTER OF CHAPTER FOUR OF THE CONSTITUTION OF KENYA 2010 AND IN THE MATTER OF ARTICLES 27 & 40 OF THE CONSTITUTION 2010 AND IN THE MATTER OF PROTECTION TO PROPERTY UNDER ARTICLE 40 OF THE CONSTITUTION OF KENYA 2010 AND IN THE MATTER OF NATIONAL GOVERNMENT CO-ORDINATION ACT (ACT NO.1 OF 2013), NATIONAL POLICE SERVICE ACT (ACT NO.11A OF 2011) AND IN THE MATTER OF SECTIONS 121 OF THE CRIMINAL PROCEDURE CODE (CHAPTER 75 LAWS OF KENYA
Between
Jacob Mutuku Musau
1st Applicant
Sylvester Mbuli Mbuvi
2nd Applicant
Amos Mutuku Musyoka
3rd Applicant
Patrick Karanja Njau
4th Applicant
and
Mombasa County Criminal Investigating Officer (CCIO)
1st Respondent
Director of Public Prosecution
2nd Respondent
and
G4s Kenya Limited
Interested Party
Ruling
1. By a Notice of Motion application dated 6. 10. 2023, the applicant herein came under Certificate of Urgency seeking that the orders made on 5. 10. 2023 dismissing their application be set aside and that their application be reinstated and heard on merit.
2. This court gave directions that the application be given by way of written submissions and parties were given timelines to respond and file submissions. However, this court has not located any responses or submissions from the respondents and Interested Parties and considering the applicant’s advocate sent a representative to hold her brief on 5. 10. 2023 and place the file aside but did not appear later when the file was called out, this court will allow the application subject to the applicant paying thrown away costs of Kshs. 20,000 to the Interested Party’s advocate.
3. The applicant is granted the last opportunity to prosecute their case on a date to be agreed on by the parties in court. Failure to prosecute within the set timelines, the application will stand dismissed.
DATED, SIGNED AND DELIVERED IN OPEN COURT/ONLINE THROUGH MS TEAMS, THIS 25TH DAY OF JANUARY 2023HON. LADY JUSTICE A. ONG’INJOJUDGEIn the presence of: -Ogwel- Court AssistantMr. Langat H/B for Ms. Jeruto Advocate for ApplicantsMr. Ngiri for 2nd RespondentMs. Lelu Advocate H/B for Mr. Mugambi Advocate for Interested PartyHON. LADY JUSTICE A. ONG’INJOJUDGEOrders: Hearing on 20. 5.2024 for applicants’ case. Hearing on 21. 5.2024 for Respondent and Interested Party’s case.Ruling on 20. 6.2024. Notice to issue to 1st Respondent.Copy of ruling to be supplied to parties on payment of copying charges.HON. LADY JUSTICE A. ONG’INJOJUDGE25. 1.2024