Paul Kritnen v Joseph Wachira Murakaru [2004] KEHC 1044 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

CIVIL APPEAL NO. 132 OF 2002

PAUL KRITNEN ……………………………………………………. APPELLANT

- Versus -

JOSEPH WACHIRA MURAKARU ……………………………… RESPONDENT

R U L I N G

On the 10th June 2004, pursuant to an application made by the Respondent, this court ordered the Appellant to provide security for costs by depositing a sum of Sh. 200,000/= in a joint account in the names of the Advocates for the parties. Upon failure to do that, on the 21st July 2004, the Respondent applied under Order 41 Rule 9(3) of the Civil Procedure Rules, that this appeal be dismissed with costs.

Mr. Gathuku, counsel for the Respondent, submitted that the Appellant is not keen on prosecuting this appeal. That is why he is not getting in touch with his advocate. Referring to the replying affidavit Mr. Gathuku further submitted that notwithstanding the fact that the cheque for Sh. 200,000/= in the joint names of the Advocates for the parties has now been received, it reached him after this application had been filed and the appeal should therefore be dismissed.

In response Mrs. Tutui, counsel for the Appellant, submitted that she received the cheque on the 8th July 2004 before the period given in the order had expired. She, however, did not send it to Mr. Gathuku immediately as she was shopping, as instructed by her clients, for a bank that could give the best interest rate. She said that failure to send the cheque to Mr. Gathuku in time was due to her mistake and the Appellant should not be punished for counsel’s mistake.

I have considered the matter. The Appellants insurers sent the cheque for security of costs as ordered before the 30 days period expired. Had Mrs. Tutui forwarded it to Mr. Gathuku immediately this application could have been avoided. This is not a case of the Appellant ignoring or refusing to comply with the court order. This is a mistake by counsel and Mrs. Tutui owned up and said she is the one to blame and not her client. In the circumstances I exercise my discretion in the matter and decline to dismiss the appeal. I therefore dismiss this application but order the Appellant to pay the costs of the application in any event. Counsel for the parties shall immediately open a joint account and deposit into it the cheque for Sh. 200,000/=.

DATED and delivered this 16th day of November 2004.

D.K. Maraga

Ag. JUDGE