[2008] KEHC 2816 (KLR)
The court found that the plaintiff's advocate was given an opportunity to make submissions on the scheduled date but failed to attend court. The record showed that the date for submissions was fixed in the presence of both parties' representatives, and the defendant had filed and served his written submissions. The...
Source-derived case information.
- Citation
- [2008] KEHC 2816 (KLR)
- Parties
- Plaintiff: Wilfrida Ondigo Auka; Plaintiff: John Oroni Auka; Defendant: Luka Owuor
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Civil Case 166 of 2004
- Procedural Posture
- Civil Case / Ruling on Application for Review of Judgment
- Outcome
- application dismissed with costs to the defendant
- Judges
- DK Musinga
- Legal Topics
- Review of Judgment, Right to Be Heard, Failure to Attend Court, Adjournment of Hearing
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Wilfrida Ondigo Auka
Plaintiff
John Oroni Auka
Plaintiff
Luka Owuor
Defendant
Procedural Posture
Civil Case / Ruling on Application for Review of Judgment
Legal Issues
- 1 Whether the plaintiff was denied an opportunity to address the court on the case before judgment was delivered.
- 2 Whether the circumstances justified review or setting aside of the judgment delivered on 23rd May, 2007.
Ratio Decidendi
The court found that the plaintiff's advocate was given an opportunity to make submissions on the scheduled date but failed to attend court. The record showed that the date for submissions was fixed in the presence of both parties' representatives, and the defendant had filed and served his written submissions. The absence of the plaintiff's advocate on the date set for submissions and on the date set for judgment was due to his own failure to act, not any denial of opportunity by the court. Therefore, there was no basis for review or setting aside of the judgment, as the requirements for review under the Civil Procedure Rules were not met. The application for review was dismissed with...
Court Disposition
application dismissed with costs to the defendant
Orders
- The application for review is dismissed with costs to the defendant.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA OF KISII Civil Case 166 of 2004
WILFRIDA ONDIGO AUKA
JOHN ORONI AUKA………...……..………………. PLAINTIFFS
VERSUS
LUKA OWUOR ……………………...………….… DEFENDANT
RULING
The applicant filed an application under Order XLIV rule 1 and order XVII rule 2 of the Civil Procedure Rules. He prayed for review and/or setting aside of this court’s judgment delivered on 23rd May, 2007. The application was made on the ground that the plaintiff was not given a chance to address the court generally on the case.
The respondent opposed the application, saying that following delivery of the judgment, he went ahead to distribute the suit land amongst his sons.
I perused the proceedings herein. The defendant closed his case on 27th November, 2006 before Bauni J. The plaintiff’s advocate applied for an adjournment to enable him make submissions. The court directed him to make submissions on 18th January, 2007. On that date the court did not sit but the plaintiff’s representative and the defendant went to the court registry and fixed a date for submissions – 18th April, 2007.
Come the set date for submissions and only the defendant, who was unrepresented, attended court.
By that time Bauni J had left the station and had been replaced by Gacheche J. The defendant told the court that he had already filed and served his written submissions upon the plaintiff’s advocates. The same were filed on 1st February 2007. The court set the date for judgment as 16th May, 2007 but on that date the plaintiff’s advocate did not attend court again. The judgment was eventually delivered on 23rd May, 2007.
In light of the foregoing, the plaintiff’s advocate can only blame himself for his failure to attend court on 18th April, 2007 to make his submissions. The opportunity to do so was availed to him but he did not act appropriately. The application for review is without merit and I dismiss the same with costs to the defendant.
DATED, SIGNEDand DELIVERED at KISII this 5th day of May, 2008.
D. MUSINGA
JUDGE
Delivered in open court in the presence of:
Mr. Bosire for applicant
Respondent present in person.
D. MUSINGA
JUDGE