JASSAN KIPTOO KOSGEI T/A TAACHASIS WHOLESALERS v NATIONAL BANK OF KENYA LTD [2005] KEHC 291 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT ELDORET

Civil Case 59 of 2000

JASSAN KIPTOO KOSGEI  T/ATAACHASIS  WHOLESALERS ......... PLAINTIFFS/APPLICANTS

=VERSUS=

NATIONAL BANK OF KENYA LTD  ……....................................…….  DEFENDANT/RESPONDENT

RULING

I have considered the  Chamber Summons dated 29th September,2005.  It was filed by Katwa Kemboi Advocates on behalf of Jassan Kiptoo Kosgei t/a  Tachasis Wholesalers.  It is purported to be brought  under section 3 and 3A of the Civil Procedure  Act (cap 21)  and Order  39 Civil Procedure Rules. The application seeks for two substantive  orders:-

1.          THAT  Interim orders made on 30th April,2005 be reinstated pending the hearing and determination of the application dated 7th July,2003.

2.          THAT  an order do issue for the hearing and determination  of the plaintiff’s application dated 7th July,2004 on priority basis.

The application came  for hearing on 11/10/2005.  Mr. Katwa for the applicant and Mr. Kuloba  for the respondent made submissions  before me.  I have considered the submissions  of Counsel for both parties, and the documents filed.

This court delivered a ruling on 9th June, 2005 in this matter.  In that  ruling, I erroneously referred to the application dated 7th July,2003 as an application dated 7th September 2003.  That was a typographical error.  That  application was actually  dated 7th July,2003.  I fixed  that application for hearing on 21st  September,2005 and granted orders of stay of sale up to that date  up to the 21/9/2005 which was the date of hearing of the application dated 7th July,2003.

On that day,  i.e. 21st  September, 2005 the matter could not be reached, as the matters listed for hearing were many.  Both  Counsels for the parties were present  and ready to proceed with the hearing of the application.  It was  the workload of the court that made the application to be adjourned and not heard.

The fact that the application could not be heard on 21/09/2005 is not blamable on any of the parties.   I gave the interim orders of stay in  order  to avoid  a situation where the application dated 3rd July 2003 would be rendered nugatory.  The Notice of motion dated 7th July,2003 is for review of the orders of this court made on 4th April, 2003.

In  view of the above circumstances, I consider that this is a matter in which there is justification  for me to reinstate the stay orders which  I gave on 9th June 2005 and were effective up to 21st September,2005.

I therefore reinstate the stay orders against the sale, till the hearing date of the application dated 7th July,2003, which will be heard on  15th  March, 2006.  Notice to issue on Counsel for the parties for the hearing on 15/03/2006.

Dated at Eldoret this  20th  day of  December,  2005.

GEORGE DULU,

AG. Judge.

In the presence of:-