Muxon Hauliers Ltd & Joseph Maiwa Kimani v Ben Wekesa Mangoli [Suing as legal representative of the Estate of Ramadhan Ayub Wekesa- Deceased] [2015] KEHC 4471 (KLR)

REPUBLIC OF KENYA

IN THE   HIGH COURT OF KENYA AT BUNGOMA

CRIMINAL APPEAL NO. 199 OF 2013

MUXON HAULIERS LTD…………………………1ST   APPLICANT

JOSEPH MAIWA KIMANI…………………………2ND APPLICANT

VERSUS

BEN WEKESA MANGOLI [suing as legal representative of the estate of  RAMADHAN AYUB WEKESA- DECEASED]

RULING

1. Application before court is dated 5th July  2014 brought  under section 1 (A), (B), 3 & 3A of the Civil Procedure Act seeking to have  the  monies being held in an interest earning account in the names of  counsel on record  for the parties released or  execution of the decree be allowed.  The application is based on the ground that the appeal has  been preferred in this matter  as agreed  by the parties in a consent dated 5th November, 2015.

2. The application is objected  through a replying affidavit dated  the 9th December 2014 sworn by Ziporah Mutina  Counsel for the Applicant/Respondent. It is the Respondent’s case that a Memorandum of  Appeal was  filed and  Counsel has been following processing of the proceedings.

3. On record there is a Memorandum of Appeal filed under a miscellaneous cause in which the Respondent had sought to   enlarge time.  There is also an  erasure and/or amendment of the  Case Number form Misc Appeal No. 199 of 2014  to Civil Appeal 11 of 2014.  Counsel for the respondent  blames the issue of case  number and the  erasures  on the Judiciary

4. From the court record  I am of the view that the registry cannot  be faulted for citing the Case Number on the pleading being filed.  There was a definite error on the part of the Respondent’s Counsel in heading of  the pleadings and therefore   the issue for this court is whether to punish the litigant  due to ignorance and/or  error  on the part of counsel obviously to punish the litigant will be to go against the  Overriding Principles which indeed the applicant seeks to  rely on. I do however appreciate the concerns of the applicant as well, and to be fair and just to both  sides  I order as follows;

I decline the application dated 8th July, 2014.

The registry do correct the anomaly and give fresh case number to the appeal.

The record of appeal be filed under the  new cause within 14 days of the date hereof.

The Respondents counsel do pay the applicant costs of Kshs. 5,000/=

5. The appeal be set down for hearing  within 60 days.

Dated at Bungoma this 12th day of    May 2015.

ALI-ARONI

JUDGE.