Abdulrazak Abdulrahman Adam v Aslam Abdulreihman Adam, Shamin Abdulrehman Adam, Khatijabhai Abdulrehman Adam & Serabanu Abdulrehman Adam [2015] KEELC 532 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

E.L.C. 91 Of 2011

ABDULRAZAK ABDULRAHMAN ADAM...................PLAINTIFF

VERSUS

ASLAM ABDULREIHMAN ADAM......................1ST DEFENDANT

SHAMIN ABDULREHMAN ADAM.....................2ND DEFENDANT

KHATIJABHAI ABDULREHMAN ADAM...........3RD DEFENDANT

SERABANU ABDULREHMAN ADAM................4TH DEFENDANT

RULING

1.     The motion for determination is one dated 25th November  2014 seeking to set aside the exparte proceedings of    20. 11. 2014 which dismissed the plaintiff's suit for non- attendance. It is supported by the grounds on the face of   it and the affidavit of Mansur Satchu advocate. The application is opposed by the  replying affidavit sworn by    Shamin Abdulrehman Adam filed and on record.

2.     Mr. Mutiso for the applicant submitted that although they were served with a hearing notice on 24. 7.2014, they did not  attend court for two reasons. First, this matter was not  in the cause list that was posted in the judiciary website.  Secondly  that he received information that the new judge was not hearing any matters except  for extension of the interim orders. He pleaded that the inadvertence was highly regrettable and the plaintiff ought to be given his day in   court.

3.     Mr. Sitonik for the Defendant/Respondent submitted that the plaintiff does not deserve the favourable exercise of this court's  discretion. He stated that the defendant also saw  the cause list posted in the web but took it upon himself    to attend court on 19. 11. 2014 alongside other parties in seven matters that were listed. The advocate further submitted that the plaintiff has never been keen to  prosecute this case as he is enjoying the  interim orders.

4.     I have considered the issues at hand. The plaintiff admits not attending court on 19. 11. 2014 but says the inadvertence was because the matter not was in the daily cause list posted in  the web (judiciary website). This is confirmed by  the defendant’s counsel who submits that e-causelist is   not conclusive. This court began her sitting in Mombasa on 18. 11. 14 having reported on transfer. It is therefore possible  that due to the transition period the parties could  be  unsure whether hearings would go on or not.  Therefore on this account only and on the fact that the cause list for  19. 11. 2014 posted in the web was not conclusive I find  this is a matter which is deserving   of the court's discretion. The prejudice if any to be suffered by the  defendants can be compensated by costs.

5.     In the result the motion is allowed and the orders of this  court issued on 19. 11. 2014 dismissing the plaintiff's suit be and is hereby set aside.  The cost of the motion is awarded   to the defendants.

Dated and delivered in open court at Mombasa this 17th   day of April. 2015.

A. OMOLLO

JUDGE