Malde & another v Karoki & 2 others [2023] KEHC 25127 (KLR)

Malde & another v Karoki & 2 others (Civil Case E384 of 2023) [2023] KEHC 25127 (KLR) (Commercial & Admiralty) (10 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25127 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Commercial Courts)

Commercial and Admiralty

Civil Case E384 of 2023

A Mabeya, J

November 10, 2023

Between

Pratik Mansukhlal Malde

1st Plaintiff

Anil Kumar Virpar Malde

2nd Plaintiff

and

Rahab Mwihaki Karoki

1st Defendant

Family Signature Limited

2nd Defendant

Kenya Revenue Authority

3rd Defendant

Ruling

1. Before Court is a Motion on Notice dated 12/10/2023 by the 3rd Respondent. The same is brought under Order 53 (1) (4) of the Civil Procedure Rules. It seeks to set aside the orders of this Court made on 20/9/2023 in which the Court stayed the Departure Prohibition orders dated 14/1/2023.

2. The application was supported by the affidavit of Faith Onyango sworn on 12/10/2023. The grounds were that, the impugned order which restrained the 3rd respondent from enforcing the departure prohibition orders of 14/1/2023 was made under material non-disclosure. That the Court was of the view that the applicants Motion dated 22/8/2023 was unopposed yet the 3rd respondent had filed a replying affidavit opposing the same. That on the material day, Counsel for the 3rd respondent fell sick and inadvertently failed to tell a colleague to hold brief for her. That the 3rd respondent stands to suffer great prejudice as the applicants are a flight risk.

3. The application was opposed vide the replying affidavit of Pratik Mansukhlal Malde sworn on 31/10/2023. It was contended that there was nothing to show that Ms. Onyango was unwell on 20/9/2023. That the 3rd respondent had other advocates who would have attended Court in the place of Ms. Onyango. That the Court was entitled to make the order it made. That the 3rd plaintiffs are not flight risk as twice the deponent was allowed to go out of the country and he still returned.

4. I have considered the rival affidavits. This is an application to set aside an order made ex parte. In such an application, the applicable principles are well known. The application must be made timeously, the reason for the failure to attend court and the prejudice to be suffered by the opposite party.

5. In the present case, the order was made on 20/9/2023 and the application was lodged on 12/10/2023. There was a delay of 22 days. In the circumstances of this case, I consider the delay of 22 days to be reasonable and not inordinate.

6. As regards the reason for non-attendance, although Ms Onyango did not produce a medical certificate to prove her sickness on the material day, I have no reason to disbelieve her. It is possible that she may have inadvertently overlooked to get someone to step in and hold her brief.

7. As regards prejudice, allowing the application would only prejudice the respondent for a short period pending the ruling of 15/12/2023. On the other hand, declining the application may cause permanent prejudice on the part of the 3rd respondent if it occurs that the applicants leave jurisdiction and do not return.

8. In the premises, I am satisfied that the application dated 12/10/2023 is meritorious and I allow the same in terms of prayer no. 4 thereof. Each party to bear own costs.

It is so ordered.

DATED AND DELIVERED AT NAIROBI THIS 10TH DAY OF NOVEMBER, 2023. A. MABEYA, FCI ArbJUDGE