[2022] KEHC 1186 (KLR)
The court found that the applicant was not served with the court's directions issued on 14/12/2021 because the registry failed to use the correct email address provided by the applicant's counsel. There was no evidence that the respondent's counsel served the applicant's counsel with the directions either. In the...
Source-derived case information.
- Citation
- [2022] KEHC 1186 (KLR)
- Parties
- Applicant: Odhiambo Owiti & Co. Advocates; Respondent: Dominion Farms Limited; Objector: Sukari Industries Limited
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Case 8 of 2019
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Set Aside Dismissal and Reinstate Application
- Outcome
- application allowed; dismissal order set aside; application reinstated
- Judges
- RE Aburili
- Legal Topics
- Setting Aside Orders, Reinstatement of Application, Service of Court Directions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Odhiambo Owiti & Co. Advocates
Applicant
Dominion Farms Limited
Respondent
Sukari Industries Limited
Objector
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Dismissal and Reinstate Application
Legal Issues
- 1 Whether the dismissal order made on 25/1/2022 should be set aside for failure to serve the applicant with court directions.
- 2 Whether the application dated 3/6/2021 should be reinstated for hearing on its merits.
Ratio Decidendi
The court found that the applicant was not served with the court's directions issued on 14/12/2021 because the registry failed to use the correct email address provided by the applicant's counsel. There was no evidence that the respondent's counsel served the applicant's counsel with the directions either. In the absence of proper service, the applicant could not be faulted for non-compliance. The court exercised its discretion to set aside the dismissal order of 25/1/2022 and reinstated the application dated 3/6/2021, subject to compliance with the original directions. Each party was ordered to bear its own costs.
Court Disposition
application allowed; dismissal order set aside; application reinstated
Orders
- The order made on 25/1/2022 dismissing the application dated 3/6/2021 is set aside and vacated.
- The application dated 3/6/2021 is reinstated on condition that the applicant complies with the directions given by the court on 14/12/2021.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT SIAYA
MISCELLANEOUS CIVIL CASE NO. 8 OF 2019
ODHIAMBO OWITI & CO. ADVOCATES.....................................................APPLICANT
VERSUS
DOMINION FARMS LIMITED.....................................................................RESPONDENT
AND
SUKARI INDUSTRIES LIMITED.......................................................................OBJECTOR
RULING
1. On 25/1/2022, this court dismissed the applicant’s application dated 3/6/2021 for failure by the applicant to comply with the court’s directions issued on 14/12/2021.
2. In the directions made on 14/12/2021 in the absence of the parties were in respect of the application dated 3/6/2021 to the effect that the applicant was to serve the Respondent/affected persons with the application dated 3/6/2021 and the Respondents were to file and serve their responses to the said application within 10 days.
3. The court also granted the applicant 7 days of the date of service to file and serve a further affidavit if any together with written submissions upon which the Respondent were to have 7 days of the date of service to file and serve a Supplementary affidavit together with written submissions.
4. Mention was to be on 25/1/2022 to confirm compliance and to fix a ruling date.
5. The court then directed the Registry to inform all parties’ advocates of the directions as given.
6. On 25/1/2022, none of the parties or their advocates attended court. the matter was called out at 9. 30 am, 12. 50 pm and at 2. 23 pm but still no appearance was noted either physically or virtually hence the dismissal of the application dated 3/6/2021 giving rise to the application dated 21/2/2022 by the advocate seeking for setting aside of the dismissal order and a reinstatement of the application dated 3/6/2021 for it to be heard and determined on merits.
7. I have considered the application dated 21/2/2022 which is not opposed despite service thereof upon the Respondent on 23/2/2022 as admitted by Ms. Osewe advocate. I observe that following the directions given on 14/12/2021, the court Registry were to notify all parties’ advocates for compliance. on 15/12/2021, at 8. 47 am, one, Modestar a Court Assistant send an email to oorlaw-info@law.co.ke and litigation@omlaw.co.ke notifying them of the court’s directions for compliance, and the next mention date which was 25/1/2022.
8. I have noted that the Respondent’s counsel’s email address received the communication from court. However, the applicant’s counsel email address provided on the application dated 3/6/2021 was info@oosadvocates.com, was never used by the Court Assistant in sending the directions issued by the court on 14/12/2021. For that reason alone, as there is no evidence that the Respondent’s counsel served the applicants’ counsel with the aforesaid directions, give the applicant the benefit of doubt. I allow the application dated 21/2/2022 and make the following orders:
(1) The order made on 25/1/2022 dismissing the application dated 3/6/2021 is hereby set aside and vacated.
(2) The application dated 3/6/2021 be and is hereby reinstated on the following conditions:
1. That the applicant complies with the directions given by this court on 14/12/2021 on the disposal of the application dated 3/6/2021.
2. The Respondent too shall comply with the directions given on 14/12/2021 on the disposal of the application dated 3/6/2021 upon the applicant complying with the timelines give in the said directions.
9. Mention on 20/4/2022 to confirm compliance with the court’s directions as above and to fix a ruling date.
10. Each party to bear their own costs of the application dated 21/2/2022.
11. Orders accordingly.
DATED, SIGNED AND DELIVERED AT SIAYA THIS 22ND DAY OF MARCH, 2022
R.E. ABURILI
JUDGE