John Peter Othieno v Anne Olawo Kimaru [2015] KEHC 2996 (KLR)

REPUBLIC OF KENYA.

IN THE HIGH COURT OF KENYA AT BUSIA.

ELC. NO. 62 OF 2014(FORMERLY  HCC. NO. 9 OF 2011)

JOHN PETER OTHIENO…………………………………………..PLAINTIFF/RESPONDENT

=VERSUS=

ANNE OLAWO  KIMARU……………………………………………DEFEDANT/APPLICANT.

R U L I N G.

ANNE OLAWO KIMARU,hereinafter  referred to as the Applicant, filed the Notice of Motion under certificate of urgency dated 30th January, 2015  seeking to have  the orders of 28th January, 2015  that dismissed  her application dated 16th January, 2015  set aside and the  application  reinstated  for hearing.

The application is opposed by John Othieno, hereinafter referred to as the Respondent, through  the replying affidavit sworn  by Gabriel  Fwaya  on 2nd February, 2015.

I have carefully  considered  the supporting  and replying affidavits and submission  by Applicant and  Respondent’s counsel  and find as follows;-

That  contrary to the claim by the Applicant that she  was in court on 28th January, 2015 and did not hear her file being called out, the truth of the matter is that the Applicant was not present  when her matter was called out. She  only walked into the court room at the tail end of the day’s  session and by then the Respondent’s counsel had left the courtroom.

That  the Applicant  has not offered any explanation as to why she was not in court when her matter was called out or why she arrived late.  She has also not explained  what  steps she took to have the matter mentioned before the Deputy Registrar upon finding  that the dismissal order had been issued.

That notwithstanding  the foregoing , the court  finds that the Applicant acted  without delay on finding her application dated 16th January, 2015  had been dismissed by filing this application within  two days.

That for  reasons in (3) above, the  application dated 30th January, 2015  is allowed in the following terms:

That the orders of 28th January, 2015  are hereby set aside.

That the application dated 16th January, 2015 is hereby reinstated and a date for its hearing be fixed on a priority basis.

That as  this application was occasioned by the lateness  of the Applicant in coming  to court on 28th January, 2015, she will meet the Respondent’s  costs of this application.

It is so ordered.

S.M. KIBUNJA,

JUDGE.

DATED AND DELIVERED ON  11th .DAY OF MARCH, 2015.

IN THE PRESENCE OF ;……N/A…………………………..PLAINTIFF/RESPONDENT

…………N/A…………………………DEFENDANT/APPLICANT

…………N/A…………………………ADVOCATE.

JUDGE.