Odhiambo Owiti & Co. Advocates v Dominion Farms Limited;Sukari Industries Limited (Objector) [2022] KEHC 1098 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT SIAYA

MISCELLANEOUS CIVIL CASE NO. 3 OF 2019

ODHIAMBO OWITI & CO. ADVOCATES.......................................................APPLICANT

VERSUS

DOMINION FARMS LIMITED......................................................................RESPONDENT

AND

SUKARI INDUSTRIES LIMITED.......................................................................OBJECTOR

RULING

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT SIAYA

MISCELLANEOUS CIVIL CASE NO. 9 OF 2019

ODHIAMBO OWITI & CO. ADVOCATES.........................................................APPLICANT

VERSUS

DOMINION FARMS LIMITED.......................................................................RESPONDENT

AND

SUKARI INDUSTRIES LIMITED.......................................................................OBJECTOR

RULING

1.  On 25/1/2022, this court dismissed the applicant’s application dated 3/6/2021 for failure by the applicant to comply with the court’s directions issued on 14/12/2021.

2.  The directions made on 14/12/2021 in the absence of the parties were in respect of the application dated 3/6/2021 to the effect that the applicant was to serve the Respondent/affected persons with the application dated 3/6/2021 and the Respondents were to file and serve their responses to the said application within 10 days.

3.  The court also granted the applicant 7 days of the date of service to file and serve a further affidavit if any together with written submissions upon which the Respondent were to have 7 days of the date of service to file and serve a Supplementary affidavit together with written submissions.

4.  Mention was to be on 25/1/2022 to confirm compliance and to fix a ruling date.

5.  The court then directed the Registry to inform all parties’ advocates of the directions as given.

6.  On 25/1/2022, none of the parties or their advocates attended court.  the matter was called out at 9. 30 am, 12. 50 pm and at 2. 23 pm but still no appearance was noted either physically or virtually hence the dismissal of the application dated 3/6/2021 giving rise to the application dated 21/2/2022 by the advocate seeking for setting aside of the dismissal order and a reinstatement of the application dated 3/6/2021 for it to be heard and determined on merits.

7.  I have considered the application dated 21/2/2022 which is not opposed despite service thereof upon the Respondent on 23/2/2022 as admitted by Ms. Osewe advocate.  I observe that following the directions given on 14/12/2021, the court Registry were to notify all parties’ advocates for compliance.  on 15/12/2021, at 8. 47 am, one, Modestar a Court Assistant send an email to oorlaw-info@law.co.ke and litigation@omlaw.co.ke notifying them of the court’s directions for compliance, and the next mention date which was 25/1/2022.

8.  I have noted that the Respondent’s counsel’s email address received the communication from court.  However, the applicant’s counsel email address provided on the application dated 3/6/2021 was info@oosadvocates.com, was never used by the Court Assistant in sending the directions issued by the court on 14/12/2021.  For that reason alone, I give the applicant the benefit of doubt I  allow the application dated 21/2/2022 and make the following orders:

(1) The order made on 25/1/2022 dismissing the application dated 3/6/2021 is hereby set aside and vacated.

(2) The application dated 3/6/2021 be and is hereby reinstated on the following conditions:

1.  That the applicant complies with the directions given by this court on 14/12/2021 on the disposal of the application dated 3/6/2021.

2.  The Respondent too shall comply with the directions given on 14/12/2021 on the disposal of the application dated 3/6/2021 upon the applicant complying with the timelines give in the said directions.

9.  Mention on 20/4/2022 to confirm compliance with the court’s directions as above and to fix a ruling date.

10. Each party to bear their own costs of the application dated 21/2/2022.

11. Orders accordingly.

DATED, SIGNED AND DELIVERED AT SIAYA THIS 22ND DAY OF MARCH, 2022

R.E. ABURILI

JUDGE