Abinel Ariga Ogamba v People Ltd & Shem Oirere [2017] KEHC 9619 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL DIVISION

HIGH COURT CIVIL CASE NO. 1161 OF 2000

ABINEL ARIGA OGAMBA ......................... PLAINTIFF/RESPONDENT

VERSUS

THE PEOPLE LTD ..................................................... 1ST DEFENDANT

SHEM OIRERE.....................................2ND DEFENDANT/APPLICANT

RULING

1. The application dated 19th August, 2016 seeks order that:

“1. Spent.

2. Spent.

3.   That this honourable Court be pleased to set aside the entire judgment herein entered against “The Defendant” together with all consequential orders thereto.

4.   That costs of this application be provided for.”

2. The application is predicated on the grounds stated therein and is supported by the affidavit and further affidavit sworn by the Applicant, Shem Oirere. The Applicant has impugned the judgment delivered herein on 14th September, 2017 and stated that the same contains some errors among them the failure to apportion liability between the 1st and 2nd Defendants.  It is stated that the said judgment is not specifically against the Applicant who was the 2nd Defendant and was an employee of the 1st Defendant, The people Ltd.  It is further deposed that the alleged defamatory publication concerned Fina Land Agencies and not the Plaintiff/Respondent.

3. The application is opposed.  It is stated in the replying affidavit that there is a regular judgment on record.  That the judgment was entered against the Defendants jointly and severally and the decree extracted and warrants of execution issued against the 2nd Defendant/Applicant.  It is averred that the Applicant has not met the conditions for a grant of stay of execution and that the application should be dismissed.

4. The application was canvassed by way of written submissions which I have duly considered.

5. The judgment herein was delivered after the case was heard in full.  Both the Plaintiff and the Defendants participated in the case and gave evidence.  If any of the parties was dissatisfied with the judgment, they could have exercised their undoubted right of appeal or sought orders for the review of the judgment. There is no leeway for the setting aside of the judgment herein on the basis of the mistakes or errors alluded to in the application. Order 12 rule 7 and Order 40 rules 1 & 2 and Sections 1, 1A, 3 & 3A Civil Procedure Rules which the application is expressed to be brought under do not come to the Applicant’s rescue in the circumstances of this case.

6. It has been submitted by the Respondents counsel that the Applicant’s Advocates are not regularly on the record for failure to comply with Order 9 rule 9 Civil Procedure Rules.  However, the court record reflects that on 22nd August, 2016 the Applicant’s advocates, Ms Omwoyo , Momanyi Gichuki & Co Advocates came on record with the leave of the court and therefore they are regularly on record.

7. With the foregoing, the application is dismissed with costs.

Dated, signed and delivered at Nairobi this 9th day of Nov., 2017

B.THURANIRA JADEN

JUDGE