Patrick Ongoya Webo, William Okisai Ondegero, Benson Barasa Sitabuka, Rebecca Busolo & Clare Kibaba v Redemptor Nasike Simati, Aneriko Masika Simiyu, Land Registrar & Attorney General [2014] KEHC 1877 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT BUNGOMA

LAND AND ENVIRONMENT  CASE NO. 262 OF 2014

1. PATRICK ONGOYA WEBO

2. WILLIAM OKISAI ONDEGERO

3. BENSON BARASA SITABUKA

4. REBECCA BUSOLO

5. CLARE KIBABA....................................................PLAINTIFFS

VERSUS

1. REDEMPTOR NASIKE SIMATI

2. ANERIKO MASIKA SIMIYU

3. THE LAND REGISTRAR

4. THE ATTORNEY GENERAL.............................DEFENDANTS

RULING

The Plaintiffs/applicants have moved this court by their application dated 9th July 2014 seeking to set aside the exparte proceedings of 19th June 2014. The application is opposed by the defendant through her replying affidavit.  I  have read the documents on record and considered the submissions offered. The events of 19th June 2014 are that this date was  fixed by  consent.  The plaintiff's advocate nor his representatives appeared in court on that day.  The plaintiff's were present  except for the  1st  and 5th plaintiffs.  The matter was put off to proceed at 3 p.m to  give the plaintiffs time to get in  touch  with their advocate.  The said advocate did not appear on the time set and the plaintiffs declined to prosecute their case unless their advocate was present.  The Plaintiff's case was therefore dismissed for want of prosecution and the court proceeded to hear the defendant's counter- claim.  It is the order of dismissal of their  suit  and evidence of 1st defendant they want set aside so both parties can be heard.

The previous advocates  on record Ms. Aburili & co. advocates has deposed a very  sketchy affidavit indicating that his health is not good    and he  requires a lot  of bed rest without any documentation to support that statement.  This court is alive to the  equitable doctrine that  mistake of counsel should  not be visited on a party.  The plaintiffs have not told this court when they last spoke to their said advocate. The record also shows the plaintiffs are in the habit of changing advocates which has caused a delay in the conclusion of this case.

The respondent  raised the issue that this matter is an abuse of the court process and res judicata  the high court CA no. 94 of 1999 and court of appeal  CA no. 227 of 2004.  The proceedings before  me now is an application to set aside the orders of 19th June 2014 so it  cannot be  res judicata  orders made before the said proceedings had not taken place.  On the aspect of  abuse of the court process, setting aside is provided for in law and a party  exercising that  right cannot be accused of abusing the court process.  Where the exercise  of such is necessary.  The applicant has not made any similar application.

I have taken into account all the issues raised and  the  law that setting aside is an  exercise of discretion of the court.  In the case cited by the respondent of Milimani civil case  no. 43 of 1999, neither the plaintiffs nor their advocate attended court on the date set for hearing. In this instance, the plaintiffs were present without their advocate. The constitution  grants parties right to be heard  under article 50 (1).   In this instance, it is a land matter which is generally  emotive as it touches on  livelihoods.  It would be just in the circumstances to grant the plaintiffs an opportunity  to present their case.  However I will penalize them for not taking appropriate steps to prepare to prosecute their case on 19th June 2014 and for wasting the defendant's time. I will thus allow the application by setting aside the  exparte proceedings of 19th June 2014 with the costs of the application awarded to the respondent.  Further the plaintiffs will pay Mr. Ocharo advocate his attendance costs of 19th June 2014 assessed  as Kshs. 15,000/= and  1st defendant's transport and lunch allowance of Kshs. 5,000/=.  This total sum is awarded as thrown away costs  to be paid within  30 days of the date of this ruling in default, execution to issue.  It is so ordered.

DATED,and DELIVEREDat BUNGOMA this 7th day of October   2014

A. OMOLLO

JUDGE.