MWAI LIMITED & JAMES MATHENGE MWAI, GRACE GACHEKE MWAI & CATHERINE WANGUI MUIGAI v MOUNT HOLDINGS LIMITED, G.K. MEENYE & M.N. KIRIMA t/a MEENYE KIRIMA ADVOCATES & MUNICIPAL COUNCIL OF MOMBASA [2010] KEHC 340 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

CIVIL CASE NO. 158 OF 2008

MWAI LIMITED.................................................................................................................1ST PLAINTIFF

JAMES MATHENGE MWAI, GRACE GACHEKE MWAI

And CATHERINE WANGUI MUIGAI as Administration of the

Estate of ISAIAH MWAI MATHENGE...........................................................................2ND PLAINTIFF

VERSUS

MOUNT HOLDINGS LIMITED......................................................................................1ST DEFENDANT

G.K. MEENYE & M.N. KIRIMA t/aMEENYE KIRIMA ADVOCATES.........................2ND DEFENDANT

MUNICIPAL COUNCIL OF MOMBASA......................................................................3RD DEFENDANT

R U L I N G

This is an application dated 1st October 2009 by the 1st Defendant, under the provisions of Section 3, 3A and 63 (e) and Orders 3a Rule 4 of the Civil Procedure Rules. It seeks the following inter alia orders:-

-That the order of stay issued on 25th June 2008 against the 1st Defendant be discharged varied and/or set aside.

-That the amended Chamber Summons dated 15th September 2009 and the entire suit is against the 1st Defendant be struck out and/or be dismissed.

When the application dated 25th June 2008 was placed before Honourable Justice Sergon on 25th June 2008. It was under a certificate of urgency.

As is the practice the matter was placed before a Judge and was expected to proceed ex parte. Mr. Simiyu appeared for the plaintiff; however, the matter did not proceed ex parte. Mr. Omulele Advocates was present and was recorded appearing for the 1st Defendant. How Mr. Omulele knew of the application and came to the court is not disclosed.

For certain, he had not come on record by the said date formally.

Mr. Omulele told the court that he would raise questions touching on jurisdiction. The court then proceeded to grant interim orders in terms of prayer 2 of the Application for 14 days.

The Court record shows that the 1st Defendant never filed any Replying Affidavit and the application has by the First Defendant has never been heard on merit. The orders of 26th June 2008 were obtained in the presence of the counsel for the 1st Defendant. The interim order was granted in the discretion of the court and extended from time to time by consent of the parties or otherwise. The 1st Defendant was under a duty to have filed its Replying Affidavit and to set down his matter for hearing.

Since Mr. Omulele was present in court and addressed the court, it is difficult to state that the orders were given ex parte, strictly speaking. It appears that he was reserving to raise his jurisdictional issues through an Replying Affidavit and grounds of opposition. I have not seen these on record. I therefore take it that the application can not to date been opposed by the 1st Defendant.

If Replying Affidavit was filed or grounds of opposition, the position shall remain that the Application has not been heard on merit.

In fact somehow there is a consent order that the application dated 25. 6.2009 would be disposed of by way of written submissions. This suggests that both parties had filed appropriate papers to the application. I have not seen the written submissions on record. If they were filed there are no proceedings to show that the application was ever heard,

In the circumstances, I hold that the 1st Defendant is not entitled to the orders to discharge, vary or set aside the orders granted by Hon. Justice Sergon in the presence of both parties.

The expectations are that the 1st Defendant was to respond to the application and oppose it on merit. The plaintiff has not stolen a match on the 1st Defendant whatsoever.

It follows that that prayer 3 cannot succeed as the order of leave to amend the Chamber Summons dated 15/09/07 was granted by this court presided over by myself, upon hearing on merit.

Application dated 1st October 2009 is dismissed with costs.

Dated and delivered at Mombasa this 16th day of November 2010

M.K. IBRAHIM

J U D G E

16. 11. 2010

Coram

Mr. Omulele for the 1st Defendant/applicant

Mr. Simiyu for the plaintiff

ORDERS

Ruling delivered in their presence.

ORDER BY CONSENT

Mention on 1st December 2010 to ensure that all court papers are in place for directions.

Ibrahim, J