Lydia Wanjiru Munyoro v Alex Ndungutse [2004] KEHC 1567 (KLR)

REPUBLIC OF KENYA

IN THE HIGH CORUT OF KENYA AT NAIROBI

CIVIL CASE NO. 2832 OF 1996

LYDIA WANJIRU MUNYORO …………………………. PLAITNIFF

VERSUS

ALEX NDUNGUTSE ………………………………. DEFENDANT

R U L I N G

The advocate for the plaintiff explained to this court in his submission and application that prayed for the reinstatement of this suit, that the said suit was not originally on the running down call over. That indeed the suit was listed in the main call over and confirmed in his absence.

That thereafter the case was listed before another judge not dealing with running down matters. He then attended to the chambers only to find that the said case was listed before those chambers and this court.

He was unable to address the court as he was not robbed.

The suit was duly dismissed for non-attendance. He had left his clients else where and they were not in court.

He prays the suit be reinstated and an early date be taken From the explanation given by the advocate on the events of the day it seems clearly that there was some confusion as to the listing on the cause list. He attended to a hearing that indicated the hearing would be done in chambers by a judge who did not deal with running down matters.

It is trite that where the hearing is of a case or a notice of motion it ought to be conducted in open court unless otherwise directed.

The advocate was not able to know which court to attend to. During this process this suit was dismissed.

I hereby use my discretion in the light of this confusion that the said advocate encountered. I hereby allow the application to reinstate this suit in the interest of justice.

Obiter dictum

I wish to just state that where an advocate goes to open court and a judge is duly robbed, the said advocate is not permitted to address the court unless he is robbed. Cases involving a full hearing and the hearing of notice of motions in civil matters are held in open court.

This practice was once lost in our courts but with the new reforms and changes, it is hopped that the dignity of the court will return in hearing matters in open court.

The costs will be in the cause.

Dated this 23rd day of April, 2004 at Nairobi.

M.A ANG’AWA

JUDGE

Mathenge & Muchemi Co. Advocates for the plaitnfif

Mungai & Gakuru advocates for the defendant