Githuya Transporters (K) Ltd v J M K (A Minor Suing Through Next Friend C K) [2018] KEHC 2544 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KITUI

MISC. CIVIL CASE NO. 36 OF 2018

GITHUYA TRANSPORTERS (K) LTD...........................................APPLICANT

VERSUS

J M K (A MINOR SUING THROUGH NEXT FRIEND C K).....RESPONDENT

R U L I N G

1. In the Application dated the 13thday ofJuly 2018 the applicant seeks orders that:

(i) The court be pleased to set aside the orders issued on the 21st day of June 2018 and reinstate the Application dated 12th June 2018.

(ii) Stay of execution of the decree issued pursuant to the judgment of Hon. Kirugumi delivered on 22nd March 2018 in CMCC 53/2016pending hearing and determination of the application.

(iii) The court fixes a hearing date for Application dated the 12th June 2018.

2. The Application is premised on grounds that: Counsel for the Applicant fell ill on the morning of 21st June  while on his way to court and was admitted at Thika Nursing Home for a couple of days  and he continues to recuperate at home. That failure to appear in court was unintentional. That the Respondent through their advocate have threatened to execute against the applicant, an act that will derail resolution of the issues herein and render the matter nugatory and mistakes of counsel should not be visited on a litigant.

3. Kevin Ngure a Deputy Manager at Directline Assurance Company limited, insurers of Motor vehicle registration NumberKAZ 149 R owned by the Applicant swore an affidavit where he deposed that the Applicant’s failure to attend court was unintentional; execution is imminent; the application raises strong and plausible issues that will assist the court in fairly determining the matter at hand and that failure of the advocate to turn up was not deliberate as he fell sick. Section 3A of the CPA provides that;

“Nothing in this Act shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court”.

4. The Application is unopposed.

5. An order reinstating an application by the court is discretionary therefore a party must adduce good reasons to make the court grant the order sought. It is alleged and not demonstrated that counsel for the applicant was indisposed.

6. However, in the light of the fact that the application is unopposed and the fact that the wrong was committed by counsel for the applicant I am guided by the case of Muwonga Estates and Another Versus N. PART CA 49/2001 where it was stated  that:

“It is now established principle of the law that original litigant who is not guilty of dilatory conduct should not be debarred from pursuing his rights in court because of the negligence of his counsel”.

7. In the premises, I do allow the application by setting aside the order dismissing the application issued on the 21st day of June 2018. In the result the Application dated the 12th day of June 2018 stands reinstated. A hearing date shall be taken at the registry.

8. It is so ordered.

Dated, Signed and delivered at Kituithis 4thday of October, 2018.

L.N. MUTENDE

JUDGE