[2005] KEHC 519 (KLR)
The court found that although mistakes of counsel should not generally be visited upon the client, the affidavit in support of the application was sworn by counsel and contained matters of fact, contrary to established legal principles. This rendered the affidavit incompetent and left the application unsupported by...
Source-derived case information.
- Citation
- [2005] KEHC 519 (KLR)
- Parties
- Plaintiff: Shadrack Kariuki Kiruhi; Defendant: Transnational Bank Limited
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 66 of 2005
- Procedural Posture
- Civil Suit / Ruling on Application to Reinstate Interim Orders Dismissed for Non Attendance
- Outcome
- application dismissed with costs
- Judges
- JW Gacheche
- Legal Topics
- Reinstatement of Orders, Non Attendance, Power of Sale, Mortgage Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Shadrack Kariuki Kiruhi
Plaintiff
Transnational Bank Limited
Defendant
Procedural Posture
Civil Suit / Ruling on Application to Reinstate Interim Orders Dismissed for Non Attendance
Legal Issues
- 1 Whether the interim orders dismissed for want of attendance should be reinstated.
- 2 Whether the affidavit in support, sworn by counsel, is competent evidence for the application.
- 3 Whether mistakes of counsel should be visited upon the client in the context of non-attendance.
Ratio Decidendi
The court found that although mistakes of counsel should not generally be visited upon the client, the affidavit in support of the application was sworn by counsel and contained matters of fact, contrary to established legal principles. This rendered the affidavit incompetent and left the application unsupported by material evidence as to the reasons for non-attendance. Consequently, the application lacked merit and was dismissed with costs.
Court Disposition
application dismissed with costs
Orders
- The application to reinstate interim orders is dismissed with costs.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT ELDORET
CIVIL SUIT 66 OF 2005
SHADRACK KARIUKI KIRUHI ………………………………….…………… PLAINTIFF
VERSUS
TRANSNATIONAL BANK LIMITED ……………………………………… DEFENDANT
R U L I N G
The plaintiff wishes to have this court grant him orders to have reinstated interim orders, which were dismissed on 16. 8.2005 for want of attendance. He bases his application in various grounds but mainly that his counsel was delayed and could not attend court in time to prosecute his application, in which he had sought to restrain Trans-National Bank Limited (“the Bank”), from disposing of his property, namely Eldoret Municipality/Block 11/413 (hereinafter called “the subject property”), in an effort to recover moneys which it claimed were owing to it.
The application is however opposed by the Bank whose contention it is that he does not deserve the order that he seeks.
I have perused the pleadings, which were filed in support of this application, the cases which were cited, and I have also taken the submissions of both able counsel into account.
It has not escaped my attention that the plaintiff does not deny being indebted to the bank. It is now trite law that an issue of taking accounts in a loan of the nature which this applicant enjoyed from the Bank cannot warrant the granting of orders to restrain a Bank from exercising its power of sale. However, it is not for me at this stage to determine whether the application which was dismissed was meritorious or not, for to do so at this stage, would be tantamount to determining an application, which as it is, is not on record at the moment. It would in any event prejudice the hearing and determination of that application, should this application be successful.
Be that as it may, I agree with counsel for the plaintiff, who admits that it was due to his delay in attending court, that the order was dismissed, that mistakes of counsel should not be visited upon clients, and on that account alone one would sympathise with the applicant and grant him the order that he seeks.
But that would not be all that a court has to consider in an application of this nature, for it is imperative that the court looks into the application to establish whether it raises excusable reasons for the non-attendance. The application is supported by Counsel’s affidavit which unfortunately contains matters of fact.
This is contrary to trite law, for, were he to be called for cross-examination on the facts, it would require that he steps into the arena and to become a witness. It is also trite law that, a person cannot be an advocate and a litigant in the same matter. Having deponed as he has, he has committed the cardinal sin and the affidavit stands struck out, of being counsel and litigant at the same time which leaves the application unsupported and hence lacking in material evidence on reasons for non attendance.
The upshot of this all is that the application lacks in merit and it is dismissed with costs.
Dated and delivered at Eldoret this 22nd day of September 2005.
JEANNE GACHECHE
JUDGE
Delivered in the presence of:
Mr. Miyienda for the plaintiff/applicant
No appearance for the defendant