Directline Assuarance Company Limited v Victor Ezra Osewe Mak’osewe [2017] KEHC 788 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT HOMA BAY

CIVIL CASE NO 6 OF 2016

DIRECTLINE ASSUARANCE COMPANY LIMITED...PLAINTIFF

VERSUS

VICTOR EZRA OSEWE MAK’OSEWE.......................DEFENDANT

RULING

1. The application dated 3rd August 2013 prays for setting aside and/or review of the orders dated 19th July 2017 dismissing the application dated 16th May 2017.  It also urges the court to reinstate the dismissed application which was dismissed for non attendance/want of prosecution, on grounds that the failure by counsel to attend court and prosecute the application was not deliberate.

2. The applicant’s counsel in a supporting affidavit explains that he arrived in court at 9. 55am only to find that the application had been dismissed, but this delay was as a result of his encounter with the National Transport and Safety Authority (NTSA) who intercepted him on a motor vehicle inspection exercise along the Kisii-Homa Bay road. There was a long delay before the said personnel could allow him to carry on with his journey and he has apologized to the court for the delay and urged that his mistake should not be visited upon his client.

3. I am aware of the regular presence of the NTSA personnel along the said route which I have had occasion to use, and take judicial notice that an encounter with them may not always be a one minute dismissal. I also take cognizance of counsel’s remorsefulness and that indeed if the prayers are not granted his client will suffer for no fault of their own. I find it prudent to grant the orders sought and do hereby set aside the orders dismissing the application dated 16th May 2017 and the same is reinstated for hearing.

4. The costs shall be in cause.

Delivered and dated this 3rd day of October, 2017 at Homa Bay

H.A.OMONDI

JUDGE