Bernard Murigi Maithya v Hussein Abdul Kadir, Mfi Office Solutions Limited, Diamond Trust Bank Kenya Limited, Registrar of Motor Vehicles & Officer Commanding Central Police Station [2019] KEHC 5104 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

HIGH COURT CIVIL APPEAL NUMBER 98 OF 2017

BERNARD MURIGI MAITHYA.............................................APPELLANT/RESPONDENT

VERSUS

HUSSEIN ABDUL KADIR.........................................................................1ST RESPONDENT

MFI OFFICE SOLUTIONS LIMITED..............................2ND RESPONDENT/APLICANT

DIAMOND TRUST BANK KENYA LIMITED......................................3RD RESPONDENT

THE REGISTRAR OF MOTOR VEHICLES.........................................4TH RESPONDENT

THE OFFICER COMMANDING CENTRAL POLICE STATION......5TH RESPONDENT

(An appeal from the ruling of the Senior Resident magistrateat Milimani

deliveredby Hon. L W Kabaira (Ms) on 27th February, 2017

in

CMCC No. 2500 of 2011)

R U L I N G

This is an application by way of Notice of Motion seeking to set aside the order dismissing the applicant’s application dated 18th June, 2018 which sought to strike out the Memorandum of Appeal dated  9th March, 2017.

This application dated 24th October, 2018 is brought under Sections 1A, 1B and 3A of the Civil Procedure Act, Order 12 Rule 7 and Order 51 Rule 1 of the Civil Procedure Rules.

It is opposed and the respondents have filed  replying affidavits  and cited some authorities. The first affidavit annexed to the application was withdrawn and another one filed which angered the respondents contesting that, this was un-procedural and that it should be expunged from the record. Counsel have filed submissions which I have noted.

The withdrawal of the first affidavit has been explained to the satisfaction of the court. No prejudice has been alleged on the part of the respondents. The reasons advanced for non-appearance of counsel for the 2nd Respondent, who is the applicant herein, on the date the application was dismissed, has equally been explained by the counsel appearing. In any case, courts are enjoined to sustain suits and applications rather than dismissing them, so that every party has their day in court.

The order for dismissal made on 18th July, 2018 is hereby set aside and the application reinstated for hearing.  The parties shall now  take a hearing date convenient to them for the application dated 18th June, 2018.  The costs of this application shall however, be paid by the 2nd respondent to the appellant.

Dated, signed and delivered at Nairobi on 20th day of June, 2019.

A. MBOGHOLI MSAGHA

JUDGE