Monica Aluoch Otieno, Robert Omolo Osawo, Alsamus Obiya Odongo & Joseph Bwoga Amata v Joseph Bwoga Ondijo [2017] KEHC 3024 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISUMU

MISC. CIVIL APPLICATION NO. 247 OF 2011

IN THE MATTER OF REFERENCE UNDER RULE 11 (2) OF THE ADVOCATES (REMUNERATION) ORDER UPON TAXATION OF PARTY AND PARTY COSTS

BETWEEN

MONICA ALUOCH OTIENO....................................................................1ST APPLICANT

ROBERT OMOLO OSAWO....................................................................2NDAPPLICANT

ALSAMUS OBIYA ODONGO..................................................................3RD APPLICANT

JOSEPH BWOGA AMATA………..........................................................4TH APPLICANT

VERSUS

JOSEPH BWOGA ONDIJO........................................................................RESPONDENT

RULING

By a notice of motion dated 20. 6.17 brought under Order 12 rule 7 of the Civil Procedure Rules and section 1A, 1B and 3A of the Civil Procedure Act and all enabling provisions of the Law; the applicants pray for orders that:

1. The Honourable Court be pleased to set aside the orders dated 17. 5.17 dismissing the application dated 10. 4.17 for non-attendance

2. Upon granting prayer 1, the Honourable Court be pleased to set a hearing date for the said application dated

3. Costs of the application be provided for

The application is based on the grounds among others that the applicant was misled by the Court Registry that the judge would not be sitting on the day the order of dismissal was made.

The application is supported by an affidavit sworn on 20. 6.17 by Robert OumaNjoga, advocate for the applicants who reiterates the grounds on the face of the application. Attached to the affidavit is a copy of the High Court Cause list for 17. 5.17 markedRON 1which indicates that Hon. Majanja J. was not sitting on that date and that all the matters listed before him were to be mentioned before the Deputy Registrar.

The replying affidavit sworn on 8. 5.17 by the respondent is a reply to an application dated 10. 4.17 and not the present application.

I have considered the application in the light of the supporting affidavit. A copy of the High Court Cause list for 17. 5.17 shows that the application dated 10. 4.17 was listed for hearing on that date before Hon. Justice Majanja. The same cause list shows that the judge was not sitting on that date and that all matters were to be mentioned before the deputy Registrar.

The applicant’s counsel’s non-attendance before the judge on the day the application dated 10. 4.17 was dismissed has been clearly explained and the court is satisfied that the information on the cause list was misleading.

Consequently, it is hereby orderedTHAT:-

1) The notice of motion dated 20. 6.17 be and is hereby is allowed and the order dated 17. 5.17 dismissing the application dated 10. 4.17 for non-attendance is set aside

2) Notice of motion dated 10. 4.17 be listed for hearing on merit

3) Costs shall be in the cause

DATED AND DELIVERED THIS12thDAY OFOctober, 2017

T.W.CHERERE

JUDGE

Read in open court in the presence of-

Court Assistant          - Felix

Applicants                   - N/A

Respondent                - N/A