AWADH SALIM ABED BADAMAN v MOHAMMED ALI PYRALLI HASHAMANI & FRANK FERDINAND HALL [2009] KEHC 1197 (KLR)

AWADH SALIM ABED BADAMAN…………………….APPLICANT

VERSUS

1. MOHAMMED ALI PYRALLI HASHAMANI

2. FRANK FERDINAND HALL ……..…………RESPONDENTS

RULING

The application dated 8th July 2009, is made by way of Chamber Summons under Order IXB Rules 8 of the Civil Procedure Rules and section 3A of the Civil Procedure Act seeking that the orders of dismissal of the application dated 18th June 2009 for non-appearance be set aside and the application be reinstated.

The grounds are that:

(a)    There was confusion between the advocate’s clerk who took down the date for hearing the application and the advocate.

(b)    The clerk indicated that the application was listed for hearing on 8th July 2009 when he attempted to file an affidavit of service in readiness for 8th July 2009, he realized that the application was in fact listed for 7th July 2009 and the same had been dismissed due to non attendance.

The affidavit sworn by Mr. Kupalia (counsel for applicant) is a repeat of what is contained on the grounds on the face of the application.

He explained that the failure to attend court on 7-7-09 was not intentional but was occasioned by an error on the part of the clerk.  He urged this court not to let the applicant suffer for a mistake not of his own making.

I think the explanation given is reasonable, no prejudice will be occasioned by setting aside the orders which dismissed application dated 18-6-09 – the applicant in fact acted with speed and filed this application by setting aside the orders of dismissal and reinstating the application dated 18-6-09 for hearing.

Parties to take mutual date in the registries.

Costs of this application shall be borne by the applicant.

Delivered and dated this 28thday of October 2009at Malindi.

H. A. Omondi

JUDGE