MKUKI RANCH LTD v MWAURA BAJITE, BETTY MUINDE, KULDET SINGH, FIRST GREEN GARNET MINING COMPANY OF KENYA, MWANGI & COMPNAY LTD, TSAVOLITE MINING COMPANY LTD, KIMOTHO MINING COMMPANY LTD, DAVIS MINING COMPANY LTD & COMMISSIONER OF MINES GEOLOGY [2010] KEHC 1415 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI (NAIROBI LAW COURTS)

Civil Suit 656 of 2009

MKUKI RANCH LTD……………………………………PLAINTIFF

VERSUS

MWAURA BAJITE………………………..……...1st DEFENDANT

BETTY MUINDE…………………………..……..2ND DEFENDANT

KULDET SINGH…………………………......…..3RD DEFENDANT

FIRST GREEN GARNET MINING

COMPANY OF KENYA ..…..............................…4TH DEFENDANT

MWANGI & COMPNAY LTD……………...……..5TH DEFENDANT

TSAVOLITE MINING COMPANY LTD……...…..6TH DEFENDANT

KIMOTHO MINING COMMPANY LTD…….........7TH DEFENDANT

DAVIS MINING COMPANY LTD…………..…….8TH DEFENDANT

THE COMMISSIONER OF MINES GEOLOGY…….9TH DEFENDANT

R U L I N G

1. On the 19th July, 2010, this court dismissed the 1st defendant’s chamber summons dated 4th March, 2010, in which the 1st defendant sought to have the plaintiff’s suit struck out. The application was dismissed due to non-attendance.

2. The 1st defendant has now come to this court seeking to have the order of dismissal set aside. In an affidavit sworn on 19th July, 2010, Antony Oluoch, who is the 1st defendant’s advocate, swears that he was in fact present outside the court, but did not hear when the matter was called out.  Counsel pleads with the court to allow the application so that his client is not prejudiced.

3. I have considered the application which was objected to by the plaintiff/respondent. The explanation given by counsel is not very convincing. However, I do note that the mistake was that of counsel and not the 1st defendant. It would not therefore be fair to punish the 1st defendant for the mistake of his counsel.  In any case the respondents can be adequately compensated by an award of costs.

4. For the above reasons, I allow the application, set aside the order of dismissal made on 19th July, 2010, and substitute thereof an order of adjournment subject to the 1st defendant paying court adjournment fees and the day’s costs to the plaintiff/respondent and the other defendants.

Dated and delivered this 15th day of October, 2010

H. M. OKWENGU

JUDGE

In the presence of: -

Advocate for the plaintiff absent

Ms Ndumia H/B for Oluoch for the 1st defendant/applicant

Njuguna for the 9th defendant

Kosgei - Court clerk