[2023] KEHC 19498 (KLR)
The court found that the application to set aside the dismissal order was filed within nine days of the order, which does not constitute inordinate delay. The applicants provided credible evidence that their advocate was indisposed on the hearing date, as shown by the attached medical treatment summary. The court...
Source-derived case information.
- Citation
- [2023] KEHC 19498 (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: The 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 Order and Reinstate Application
- Outcome
- Application to set aside dismissal order allowed; original application reinstated for hearing.
- Judges
- A. Ong’injo
- Legal Topics
- Setting Aside Orders, Reinstatement of Application, Inordinate Delay, 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
The Director Of Public Prosecution
Respondent
G4S Kenya Limited
Interested Party
Procedural Posture
Miscellaneous Criminal Application / Ruling on Application to Set Aside Dismissal Order and Reinstate Application
Legal Issues
- 1 Whether the application to set aside the dismissal order was made without inordinate delay.
- 2 Whether sufficient cause was shown for non-attendance by the applicants' advocate.
- 3 Whether the applicants are entitled to reinstatement of their dismissed application.
Ratio Decidendi
The court found that the application to set aside the dismissal order was filed within nine days of the order, which does not constitute inordinate delay. The applicants provided credible evidence that their advocate was indisposed on the hearing date, as shown by the attached medical treatment summary. The court held that the applicants took reasonable steps to seek reinstatement upon learning of the dismissal. In the interest of justice and the right to be heard, the court allowed the application to set aside the dismissal order, subject to the condition that the applicants would have only one opportunity to prosecute their application expeditiously.
Court Disposition
Application to set aside dismissal order allowed; original application reinstated for hearing.
Orders
- The orders made on March 22, 2023 dismissing the applicants' application are set aside.
- The applicants' application is reinstated and will be heard on October 5, 2023.
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) [2023] KEHC 19498 (KLR) (30 June 2023) (Ruling)
Neutral citation: [2023] KEHC 19498 (KLR)
Republic of Kenya
In the High Court at Mombasa
Miscellaneous Criminal Application 19 of 2020
A. Ong’injo, J
June 30, 2023
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
The Director Of Public Prosecution
2nd Respondent
and
G4S Kenya Limited
Interested Party
Ruling
1. By a Notice of Motion application dated March 31, 2023, the applicant sought that the court sets aside orders made on March 22, 2023 dismissing the applicant’s application so that it is heard on merit for reasons that the advocate in conduct of the matter was undisposed and was not in a position to attend court and proceed with the hearing. Ms Jeruto attached her treatment summary from Bigson Health Services dated March 22, 2023 to confirm that she was undisposed on the material day.
2. This application was opposed by the Interested Party vide grounds of opposition dated May 15, 2023 on the ground that there was inordinate delay in bringing the application to reinstate the proceedings. That there was no evidence of technical hitches experienced by counsel on record.
3. This court has considered that the order dismissing the application was made on March 22, 2023 and the application to set aside those orders was filed on March 31, 2023. A period of 9 days is by all standards not inordinate delay. The applicants took reasonable steps to apply for reinstatement of their application upon realizing the same had been terminated.
4. The court is therefore inclined to allow the orders prayed for on conditions that applicants will have just one opportunity to prosecute the application and have the matter determined expeditiously. This matter will therefore be heard on October 5, 2023. The applicants, respondents and the interested party should prepare to be heard on that particular day. Orders accordingly.
DATED, SIGNED AND DELIVERED IN OPEN COURT/ONLINE THROUGH MS TEAMS,THIS 30TH DAY OF JUNE 2023HON. LADY JUSTICE A. ONG’INJOJUDGEIn the presence of: -Ogwel- Court AssistantMs. Jeruto Advocate for ApplicantsMr. Ngiri for 2nd RespondentMr. Mugambi Advocate for Interested PartyHON. LADY JUSTICE A. ONG’INJOJUDGEMr. MugambiI wish to reserve my clients Right of Appeal incase they decide to pursue that option.HON. LADY JUSTICE A. ONG’INJOJUDGEOrderAny decision made by any court is subject of Right of Appeal unless express provision is made for leave.HON. LADY JUSTICE A. ONG’INJOJUDGE30/06/2023