Jackson Kiprotich Arap Kibor v Agricultural Finance Corporation [2014] KEHC 589 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

COMMERCIAL AND ADMIRALTY DIVISION

CIVIL SUIT NO. 258 OF 2006

JACKSON KIPROTICH ARAP KIBOR...................PLAINTIFF

VERSUS

AGRICULTURAL FINANCE CORPORATION......DEFENDANT

RULING

1. The application before the court seeks to set aside the orders which the court made on 19th March 2009.  If the relief sought is granted, it will result in the reinstatement of the defendant’s application dated 24th July 2008.

2. The facts leading up to the present application are as follows:

3. The Plaint was filed in court on 17th May 2006.  Alongside the Plaint, the plaintiff filed an application for an interlocutory injunction, seeking to stop an auction of the plaintiff’s property which had been charged as security for financial facilities accorded to KESSENCHE TRANSPORT LIMITED.

4. On 31st May 2006, Mr. CYRIL S. WAYONG’O advocate entered appearance for the defendant.  However, the defendant did not file and Defence.

5. The plaintiff filed a Request for Judgment in default of the Defence; the said request was lodged in court on 7th February 2007.

6. The Learned Deputy Registrar entered Judgment in favour of the plaintiff on 26th February 2007.

7. On 25th July 2008 the Defendant filed an application to set aside the judgment.

8. The record shows that on 19th March 2009 neither party attended court.  However, the learned Judge dismissed the application dated 24th July 2008, on that date.

9. Obviously as both parties were absent from the court on that date, neither of them would have immediately become aware about what transpired on that date.

10. On 8th May 2009, the defendant’s advocate attended at the Court Registry where he had the application dated 24th July 2008 fixed for mention on 15th June 2009. Before going to the Court Registry, the defendant’s lawyer wrote to the plaintiff’s lawyer on 27th April 2009, informing him that the defendant wished to have the Registry set a date for the hearing of the application dated 24th July 2008.

11. To my mind, the conduct of the defendant’s advocate is a clear testimony that he was unaware that the application dated 24th July 2008 had already been dismissed.

12. The defendant has now demonstrated to this court that on 17th March 2009, this case was not on the cause list.  The cause list for that day was provided to the court, and the case was not on it.

13. The plaintiff has not controverted the said information.  Therefore, on the basis of the clear evidence from the defendant, I find that the parties were both unaware that the application dated 24th July 2008 was scheduled for Hearing on 19th March 2009.

14. The explanation tendered by the defendant was that the two parties had fixed the application for Hearing on 17th March 2009.  That explanation has not been challenged by the plaintiff.  I therefore accept it as representing the correct factual position even though the court record actually shows that the date minuted was the 19th of March 2009.

15. This is a unique case where there was a mutual mistake on the part of both parties. They knew that they had been given the date of 17th March 2009, whilst the Registry staff had minuted the date as 19th March 2009.

16. Having become aware of the fact that the application dated 24th July 2008 had been dismissed, the defendant has said that it did not immediately seek its reinstatement because the parties were holding negotiations.  Once again, the plaintiff has not controverted that assertion.  I therefore accept it as representing the truth.

17. We have a situation in which the court has granted interlocutory judgment in favour of the plaintiff.  However, the plaintiff has not taken any further steps in the case.

18. In the circumstances, the reinstatement of the application dated 24th July 2008 would not be prejudicial to the plaintiff.

19. The parties will then have an equal chance when the application was canvassed on merit.

20. Accordingly, I allow the application dated 13th December 2011, and set aside the orders made on 19th March 2009.  In the result, the application dated 24th July 2008 is reinstated for hearing.

21. However, the defendant and the plaintiff cannot bear any blame for what transpired on 19th March 2009, which gave rise to the need for the current application.

22. I therefore order that the costs of the application dated 13th December 2011 be in the cause.

DATED, SIGNED and DELIVERED at NAIROBI this2nd day of December2014.

FRED A. OCHIENG

JUDGE

Ruling read in open court in the presence of

……………………………………………for the Prosecution.

………………………………………………for the Accuseds.

Collins Odhiambo – Court clerk.