Musau & 3 others v Mombasa County Criminal Investigating Officer (CCIO) & another; G4S Kenya Limited (Interested Party) [2023] KEHC 19498 (KLR)

Musau & 3 others v Mombasa County Criminal Investigating Officer (CCIO) & another; G4S Kenya Limited (Interested Party) (Miscellaneous Criminal Application 19 of 2020) [2023] KEHC 19498 (KLR) (30 June 2023) (Ruling)

Neutral citation: [2023] KEHC 19498 (KLR)

Republic of Kenya

In the High Court at Mombasa

Miscellaneous Criminal Application 19 of 2020

A. Ong’injo, J

June 30, 2023

Between

Jacob Mutuku Musau

1st Applicant

Sylvester Mbuli Mbuvi

2nd Applicant

Amos Mutuku Musyoka

3rd Applicant

Patrick Karanja Njau

4th Applicant

and

Mombasa County Criminal Investigating Officer (CCIO)

1st Respondent

The Director Of Public Prosecution

2nd Respondent

and

G4S Kenya Limited

Interested Party

Ruling

1. By a Notice of Motion application dated March 31, 2023, the applicant sought that the court sets aside orders made on March 22, 2023 dismissing the applicant’s application so that it is heard on merit for reasons that the advocate in conduct of the matter was undisposed and was not in a position to attend court and proceed with the hearing. Ms Jeruto attached her treatment summary from Bigson Health Services dated March 22, 2023 to confirm that she was undisposed on the material day.

2. This application was opposed by the Interested Party vide grounds of opposition dated May 15, 2023 on the ground that there was inordinate delay in bringing the application to reinstate the proceedings. That there was no evidence of technical hitches experienced by counsel on record.

3. This court has considered that the order dismissing the application was made on March 22, 2023 and the application to set aside those orders was filed on March 31, 2023. A period of 9 days is by all standards not inordinate delay. The applicants took reasonable steps to apply for reinstatement of their application upon realizing the same had been terminated.

4. The court is therefore inclined to allow the orders prayed for on conditions that applicants will have just one opportunity to prosecute the application and have the matter determined expeditiously. This matter will therefore be heard on October 5, 2023. The applicants, respondents and the interested party should prepare to be heard on that particular day. Orders accordingly.

DATED, SIGNED AND DELIVERED IN OPEN COURT/ONLINE THROUGH MS TEAMS,THIS 30TH DAY OF JUNE 2023HON. LADY JUSTICE A. ONG’INJOJUDGEIn the presence of: -Ogwel- Court AssistantMs. Jeruto Advocate for ApplicantsMr. Ngiri for 2nd RespondentMr. Mugambi Advocate for Interested PartyHON. LADY JUSTICE A. ONG’INJOJUDGEMr. MugambiI wish to reserve my clients Right of Appeal incase they decide to pursue that option.HON. LADY JUSTICE A. ONG’INJOJUDGEOrderAny decision made by any court is subject of Right of Appeal unless express provision is made for leave.HON. LADY JUSTICE A. ONG’INJOJUDGE30/06/2023