[2019] KEHC 6808 (KLR)
The court found that the applicant and/or his advocate were aware of the scheduled mention date for the application but failed to attend without providing any explanation. The court held that Judge P.J. Otieno acted within his powers in dismissing the application for want of attendance. No compelling or satisfactory...
Source-derived case information.
- Citation
- [2019] KEHC 6808 (KLR)
- Parties
- Applicant: Salim Khamis Takdir; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 103 of 2018
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application to Set Aside Dismissal and Reinstate Motion
- Outcome
- application dismissed
- Judges
- AW Mwangi
- Legal Topics
- Reinstatement of Application, Dismissal for Non Attendance, Court Discretion, Application Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Salim Khamis Takdir
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Application to Set Aside Dismissal and Reinstate Motion
Legal Issues
- 1 Whether the court should set aside the dismissal order made on 27th August, 2018 for want of attendance and reinstate the applicant's motion.
- 2 Whether sufficient or compelling reasons were provided for the applicant's or advocate's failure to attend court.
Ratio Decidendi
The court found that the applicant and/or his advocate were aware of the scheduled mention date for the application but failed to attend without providing any explanation. The court held that Judge P.J. Otieno acted within his powers in dismissing the application for want of attendance. No compelling or satisfactory reason was advanced by the applicant to justify setting aside the dismissal and reinstating the application. The absence of an explanation for non-attendance was fatal to the applicant's request, and the court declined to exercise its discretion in favour of reinstatement.
Court Disposition
application dismissed
Orders
- The application dated 24th January, 2019 is dismissed.
- There is no order as to costs.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
MISCELLANEOUS CRIMINAL APPLICATION NO. 103 OF 2018
SALIM KHAMIS TAKDIR ..............................................................APPLICANT
VERSUS
REPUBLIC....................................................................................... RESPONDENT
RULING
1. The application dated 24th January, 2019 seeks the following orders:-
(i) Spent;
(ii) That the orders made on 27th August, 2018 dismissing the applicant's Notice of Motion be set aside and the application be reinstated; and
(iii) That the costs of this application be in the cause.
2. The application is supported by the affidavit of G.A. Okumu, Advocate sworn on 24th January, 2019. I have perused the said affidavit which in my understanding is indicative of the fact that the applicant and/or his Advocate was/were aware that the application dated 2nd August, 2018 was coming up for mention on 27th August, 2018. It was mentioned before the duty Judge, Hon. P.J. Otieno. The applicant and/or his Advocate did not attend court. The matter was dismissed for want of attendance.
3. The Director of Public Prosecutions through an affidavit sworn by Ms Ocholla, Prosecution Counsel, on 5th March, 2019 opposed the application for the reason that the applicant and his Advocate failed to attend court on 27th August, 2018. She also deposed to the fact that the application dated 2nd August, 2018 had been certified as urgent by Chepkwony Judge and the respondent was given time to file a replying affidavit and to appear before the said Judge on 20th August, 2018 for hearing of the said application. The court was however on vacation which prompted the matter to be taken to the Deputy Registrar who assigned it a mention date for 27th August, 2018.
4. I have considered the averments by both parties and having gone through the affidavit by Ms Okumu Advocate, no attempt has been made to explain the reason as to why she or her client failed to appear before Hon. Judge P.J. Otieno on 27th August, 2018. This was pursuant to the directions by the Deputy Registrar, for mention of the application dated 2nd August, 2018.
5. This court notes that it was within the powers of Judge P.J. Otieno to dismiss the said application as he did, for want of attendance. No compelling reason has been advanced as to why I should reinstate an application that was dismissed by failure of the applicant or his Advocate to attend court.
6. The application dated 24th January, 2019 is hereby dismissed, with no order as to costs.
DELIVERED, DATED and SIGNED at MOMBASA on this 26th day of April, 2019.
NJOKI MWANGI
JUDGE
In the presence of
Mr. Odundo holding brief for Ms Okumu for the applicant
Ms Ogweno, Principal Prosecution Counsel for the DPP
Appellant present in person
Mr. Oliver Musundi – Court Assistant