[2017] KEHC 2904 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KAKAMEGA

JUDICIAL REVIEW NO. 25 OF 2009

REPUBLIC:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::APPLICANT

VERSUS

THE CHAIRMAN MATUNGU LAND DISPUTES TRIBUNAL

THE CHIEF MAGISTRATE COURT KAKAMEGA

THE ATTORNEY GENERAL:::::::::::::::::::::::::::::::::::::::RESPONDENTS

EXPARTE

JOSEPH OYOO MAUNDA

AND

ALEXANDER O. MAUNDA

WILLIAM O. MAUNDA )::::::::::::::::::::::::::::::::INTERESTED PARTIES

RULING

This application is dated 3rd July 2017 and is brought under section 1, 1B, 3 3A of the Civil Procedure Act, Cap 21, order 51 Rule 10 1, 2 of Civil procedure rules 2010 Article 159 (2) of the Constitution of Kenya 2010 and seeks the following orders;

1. THAT this application be certified urgent to be heard ex-parte at the first instance and be fixed for inter-parties hearing thereafter.

2. THAT pending hearing and determination of the application herein there be stay of the orders granted on 22nd June, 2017.

3. THAT this honourable court be pleased to reinstate the application dated 25th May, 2016 for hearing on merits.

4. THAT the cost of this application be provided for.

The application is based on the grounds set out herein below and in the annexed affidavit of Collins Orieyo and upon the facts that on 22nd June, 2017 the matter came up for hearing of application dated 25th May, 2017. On the same date 22nd June, 2017, this court dismissed the said application on reasons that it seems no party is interested in prosecuting this matter as there was no attendance and therefore the matter was dismissed for non-attendance and pursuant to Order 12 rule 1 of the Civil Procedure Rules. The applicant submitted that office master diary was misdiarized and reflected 26th June, 2017 so the advocate having personal conduct of the matter only knew about the date of 26th June, 2017 instead of 22nd June, 2017, on the date the matter was coming up for hearing. Due to the said error or mistake cause by misdiarization, the applicant too did not attend court on the 22nd June, 2017 since the applicant’s advocates had informed them of 26th June, 2017 not 22nd June, 2017 as the date when the matter was to be heard, which error or mistake was beyond the applicant’s control. Such error or mistake out of the applicant’s control should not visit suffering on them. In the premises, and in the interest of justice it is just and fair that the court’s ruling and or order dated 22nd June, 2017 be varied or set aside and the application be reinstated for hearing on merits.

The respondent/interested party submitted that it is alleged that there was an error or mistake in misdiarizing the matter in the advocate’s master diary reflecting 26th June 2017 and a leaf page of the said date from the master diary has not been annexed. The applicant took a date in this matter and fixed it for hearing on the 18th April 2017 and on the 26th April 2017 served a hearing notice dated 19th April 2017 which clearly indicates the date for hearing as the 22nd June 2017 (Annexed is a copy of the hearing notice). It is alleged that on the same date of service, is when the client/applicant was informed of the “alleged” wrong hearing date. It is not possible on the same date to inform client of a different hearing date and serve the interested party with another date. From the foregoing, it is a clear indication and manifestation that the applicant is determined to mislead the court, it is only prudent that the application be dismissed with costs so as to bring litigation to a rest. The respondent also invites the court to look into the past conduct of the applicant and deduce that if the application that was dismissed was seeking to reinstate the suit herein which was dismissed for want of prosecution since the applicant had never taken any step to prosecute the matter for a period of over one year prior to the application dated 25th May 2016. The respondent prays that the applicant’s application be dismissed with costs.

This court has carefully considered both the applicant’s and the respondent’s submissions. The facts are that on 22nd June, 2017 the matter came up for hearing of application dated 25th May, 2016 and this court dismissed the said application on reasons that there was no attendance therefore the matter is dismissed. The applicant submitted that the office master diary was misdiarized and reflected 26th June, 2017 instead of 22nd June, 2017 and so the advocate having personal conduct of the matter did not attend. In the case of Utalii Transport Company Ltd & 3 Others v NIC Bank & Another (2014) eKLR, the court held that it is the primary duty of the plaintiffs to take steps to progress their case since they are the ones who dragged the defendant to court. The decision on whether the suit should be reinstated for trial is a matter of justice and it depends on the facts of the case. In Ivita v Kyumbu (1984) KLR 441, Chesoni J as he then was, stated that the test is whether the delay is prolonged and inexcusable and if justice be done despite the delay. Justice is justice for both the plaintiff and the defendant. This matter was filed way back in 2009. The applicant took a date in this matter and fixed it for hearing on the 18th April 2017 and on the 26th April 2017 served a hearing notice dated 19th April 2017 which clearly indicates the date for hearing as the 22nd June 2017. The annexed is a copy of the hearing notice is on record. The applicant has not shown any commitment and seriousness in prosecuting the matter from 2009 and there is no serious or plausible reason that has been advanced to the court to warrant setting aside or variation of the orders made on the 22nd June 2017. I find the reasons given have no merit and are inexcusable. This application has no merit and I dismiss it with costs.

DELIVERED, DATED AND SIGNED AT KAKAMEGA IN OPEN COURT THIS 11TH DAY OF OCTOBER 2017.

N. A. MATHEKA

JUDGE