[2009] KEHC 2430 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KISII

CIVIL CASE 49 OF 1996

OMBARE GEKENE ……………………………….. PLAINTIFF

VERSUS

MBARANYA INDIRE …....……………………… DEFENDANT

RULING

This suit was filed by the Plaintiff on 5th February, 1996. He claimed that in the 1986 he bought a piece of land parcel No.SUNA EAST/KAKRAO/1052 measuring about 2. 5 hectares from one Samuel Omenda, who is the brother of the Defendant, and paid full purchase price. When he went to Homa Bay District Lands registry, he was issued with Title Deed for Suna East/Kakrao/1053, which was a mistake. The Plaintiff was already in occupation of the former land. He has sued the Defendant claiming that the latter has refused to cause the rectification of the mistake. The latter parcel belongs to the Defendant. He sought declaration that the former land was his and the latter belonged to the Defendant.

The Defendant filed the Defence denying these claims and pleaded that the alleged transfer of the land in dispute by Samuel Omenda was fraudulent because the land belonged to the deceased Indire Iyuya in respect of whom no Letters of Administration had been granted. The case came to court for hearing on several occasions until on 29th May 2003 when it was dismissed with costs for want of prosecution. On that day the Defendant was in court but the Plaintiff and his Advocate were absent. The case had earlier been scheduled for hearing on 3rd March 2003 when it was adjourned to 29th May 2003. Both parties were represented when the case was adjourned. The Advocate on record for the Plaintiff is Mr. Nyagesoa. On that day Mr. Masese was holding his brief.

On 13th September, 2004 the Plaintiff brought this application under Order 9B rule 8 of the Civil Procedure Rules and section 3A of the Civil Procedure Act seeking that the order dismissing his suit be set aside and the suit be reinstated for hearing. In the Supporting Affidavit he deponed that since the inception of the case he had been attending the court without missing. He counted 18 times that he had come to court over the case and it did not take off. He stated this was the only time he had failed to attend and the reason was that he had not been informed by his Advocate that the case was coming for hearing.

He sought to find out from his Advocate and learned that Mr. Masesewho held brief on 3rd March, 2003 did not inform the Advocate that the case was coming up for hearing on 29th May, 2003.

In the Replying Affidavit the Defendant deponed that since the inception of the case it has been adjourned severally at the instance of the Plaintiff. The record does not show that the deponent is correct in that assertion. The Defendant did not directly answer the averment by the Plaintiff regarding the events of both 3rd March, 2003 and 29th May, 2003.

When the application came up for hearing there was no appearance on the part of the defence.

In the case of Maina vs Muriuki [1984] KLR 407, the suit was set down for hearing with the consent of the parties and their counsel. On the date of the hearing the Defendant and his Advocate were absent but the Plaintiff and his Advocate were present. The suit proceeded to hearing ex parte and an ex parte judgment was delivered on the following day. The Defendant applied to set aside that judgment on basis that he was not aware that the suit was to proceed for hearing and he was relying on his Advocate. The court reiterated the position of the law that it had wide discretion to set aside ex parte judgment on such terms as are just. The discretion is intended to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake or error but it is not designed to assist a party which has deliberately sought to obstruct or delay the course of justice (Patel vs EA Cargo Handling Services Ltd. [1974] EA 75 at page 76). The court went on to find that the mistake of an advocate should not be visited on his client and relied on the case of Jamnadass vs. Sodha v Gordandas Hemraji [1952] 7ULR IIreported inSebei District Administration v Gasyali [1968] EA 300.

I entirely agree with the position of the law and observations above. This is a land case and to deny the Plaintiff his day in court would be the last thing one would like to do, especially when the Defendant can be compensated by way of costs. As was stated in Chemwolo and another v Kubende [1984] LLR 219 (CAK), the court exists for the purpose of deciding the rights of the parties and not for the purpose of imposing discipline.

I allow the application and set aside the order dismissing with costs the Plaintiff’s case. The case is hereby reinstated for hearing and, owing to its age, I ask that a priority date be given by the registry. Costs of this application will be paid by the Plaintiff who has been indulged.

Dated, signed and Kisii this 15th day of June, 2009

A. O. MUCHELULE

JUDGE

15/6/09

A. O. Muchelule J

c/c Mongare

Mr. Omwega for Mr. Nyagesoa for Applicant

Court:- Ruling in open court.

A. O. MUCHELULE

JUDGE

15/6/09