[2010] KEHC 1612 (KLR)
The court found that the 2nd applicant's failure to attend the hearing was due to an inadvertent mistake by its advocate, who failed to diarize the hearing date. This mistake was not shown to be reckless or deliberate, and the respondent did not rebut the explanation. The application to set aside the ex parte order...
Source-derived case information.
- Citation
- [2010] KEHC 1612 (KLR)
- Parties
- Applicant: Ol Kalou Farmers Sacco Bank Ltd; Applicant: Co-operative Bank of Kenya Limited; Respondent: James K. Mwaura
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Case 211 of 2007
- Procedural Posture
- Civil Case / Ruling on Application to Set Aside Ex Parte Injunction
- Outcome
- application to set aside ex parte injunction granted
- Judges
- SP Ouko
- Legal Topics
- Ex Parte Injunctions, Setting Aside Orders, Discretion of Court, Mistake of Advocate
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ol Kalou Farmers Sacco Bank Ltd
Applicant
Co-operative Bank of Kenya Limited
Applicant
James K. Mwaura
Respondent
Procedural Posture
Civil Case / Ruling on Application to Set Aside Ex Parte Injunction
Legal Issues
- 1 Whether the ex parte injunction granted on 22nd October, 2007 should be set aside.
- 2 Whether the failure of the 2nd applicant's advocate to attend court constituted a sufficient reason for non-attendance.
- 3 Whether the application to set aside was brought without undue delay.
Ratio Decidendi
The court found that the 2nd applicant's failure to attend the hearing was due to an inadvertent mistake by its advocate, who failed to diarize the hearing date. This mistake was not shown to be reckless or deliberate, and the respondent did not rebut the explanation. The application to set aside the ex parte order was brought promptly, only two months after the order was made. The court held that there would be no prejudice to the respondent if the order was set aside, and that the ends of justice would be served by allowing both parties to be heard. Accordingly, the court exercised its discretion to set aside the ex parte injunction granted on 22nd October, 2007.
Court Disposition
application to set aside ex parte injunction granted
Orders
- The ex parte orders of 22nd October, 2007 are set aside.
- Costs of the application awarded to the respondent.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
Civil Case 211 of 2007
OL KALOU FARMERS SACCO BANK LTD…........…….....1ST APPLICANT/DEFENDANT
CO-OPERATIVE BANK OF KENYA LIMITED…..............…2ND APPLICANT/DEFENDANT
VERSUS
JAMES K. MWAURA...................................................…………..RESPONDENT/PLAINTIFF
RULING
The respondent in the instant application, James Karanja Mwaurainstituted this suit against the applicants herein, Co-operative Bank of Kenya Limited and Ol Kalou Farmers Sacco Bank Limited seeking a declaration that the charge over Nyandarua/Upper Gilgil/582 is illegal, null and void and that the 2nd applicant be ordered to unconditionally release the original title to the suit property to the respondent.The suit also seeks to restrain permanently by an order of injunction the 2nd applicant from selling the suit property.
Simultaneously filed with the plaint was chamber summons for temporary restraining orders.An interpartes hearing date was fixed for22nd October, 2007and the applicants duly served.On that day, there was no appearance either for the applicants or their counsel and the matter proceeded exparte.Thereafter, the court (Koome, J) granted the orders sought.Two months later, on 18th December,
2007, the 2nd applicant brought the present application praying that the exparte order of injunction in question be discharged, varied and/or set aside and laying the blame for its failure to attend court on the date set for the hearing on its erstwhile advocates.It further contents that the exparte injunction was obtained by concealment and misrepresentation of material facts.
In reply, the respondent has averred that the application has been brought late, otherwise the rest of the 23 paragraphed affidavit deals only with the merit of the suit.
I have considered the application, submissions and the authorities cited.The court has unfettered discretion to discharge or vary or set aside, under Order 39 rule 4 of the Civil Procedure Rules, any order for an injunction, or application by any party dissatisfied with the order.The only consideration in such application calling for the exercise of the court’s discretion is whether the 2nd applicant was prevented from attending the court for the hearing of the application by a good and sufficient reason.
The 2nd applicant has averred that its erstwhile advocates M/s. Njeri Wamithi and Company Advocates failed to attend.In its supplementary affidavit, the 2nd applicant has annexed an affidavit sworn by Irene Njeri Wamithi in which she avers that she inadvertently failed to diarize the date of22nd October, 2007as a result of which she did not attend the court on that day.A mistake
can be committed by even the most diligent lawyer as mistake is to human.
The respondent has not challenged or rebutted that averment by showing that the applicant was reckless or deliberately failed to attend court.The applicant timeously brought this application, only two months after the exparte order was made.There will be no prejudice to the respondent and costs will be sufficient compensation.Indeed the ends of justice will be served by giving the parties equal chance to ventilate their respective positions in the application.
In the result, this application succeeds with costs to the respondent.The exparte orders of22nd October, 2007are accordingly set aside.
Dated, Signed and Delivered at Nakuru this 9th day of June, 2010.
W. OUKO
JUDGE