REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT ELDORET
Civil Suit 41 of 2004
PETER GICHARU NGIGE ……………………………..….…………………… PLAINTIFF
VERSUS
KIIRU CHOMBA …………………………………………………………. 1ST DEFENDANT
CHRISTINE WAMBUI MWAURA ………………….…..…..………….. 2ND DEFENDANT
HANNA WAMBUI MUREITHI …………………..……..……………..… 3RD DEFENDANT
THE ATTORNEY GENERAL on behalf of the
CHAIRMAN SOY LAND DISPUTES TRIBUNAL …..…………..…… 4TH DEFENDANT
RULING
On 5/4/2005, I dismissed an application by the 1st, 2nd and 3rd defendants for want of prosecution. The three are now back to court in an application filed under Order XI B of the Civil Procedure Rules and sections 3, 3A, 63 (c) of the Civil Procedure Act, in which they pray that the said order of dismissal be set aside or varied, that the said application be reinstated and heard on merits and that the interim orders which were in place then be reinstated.
They base this application on various grounds, but mainly that the matter was dismissed during the vacation, on a day when matters were not cause listed for hearing.
The application is supported by an affidavit of their counsel, who depones that upon learning that there was no cause list for the day, he had decided to attend to matters in the subordinate first, only to realise that the matter had been called in his absence and dismissed.
The application is however opposed on the grounds that it has been brought under the wrong provisions of the law, as none of the cited ones provide for this type of application, which in Mr. Gicheru’s submission, should have been Order L rule 17; that despite the fact that it was the applicants counsel who had obtained the date and time, he nevertheless failed to turn up in court, and that therefore, no sufficient reasons have been given for non-attendance. He also urged the court to dismiss the application as no useful purpose would be served by setting aside the dismissal order, as though in their original application they seek restraining orders on three parcel of land which they allegedly own, they have not filed a counterclaim to the suit.
I have taken the submissions of both counsel into account. Admittedly the application has been brought under the wrong provisions of the law, but the respondent who was well prepared for it, has not shown that he was prejudiced at all.
Be that as it may, I am well alive to the fact that litigants should not be made to suffer for the mistakes of their counsel.
It is clear that though the applicants’ counsel obtained the hearing dates after which he issued the relevant hearing notices, which indicated that the matter would be heard at 9.00am, he however gives the reasons for non attendance, I am inclined to give him the benefit of doubt especially in view of the fact that the matter was to proceed during the court vacation. He says that his clients stand to suffer prejudice, and rightly so as the restraining orders which they had procured were vacated when their application was dismissed.
It is important that I point out that at this stage I am not required to look into the merits of the application which was dismissed, for if I did so it would to be tantamount to determining an application which as it is, is not on record at this particular moment.
I am convinced that the reasons which the applicants have advanced are excusable, and I therefore grant orders in line with the applicants’ prayers second and third prayers. Costs shall be in the cause.
Dated at Eldoret this 8th day of July 2005.
JEANNE GACHECHE
Judge
Delivered at Eldoret this 28th day of July 2005.
GEORGE DULU
Ag. Judge
Delivered in the presence of:
Mr. Gicheru for plaintiff, No appearance for defendants