Salim Idi Mohamed Salim v Nairobi City County & Stephen Tom Okeyo Abebe [2015] KEHC 1348 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL APPEAL NO. 430 OF 2014

SALIM IDI MOHAMED SALIM........................................APPELLANT

VERSUS

NAIROBI CITY COUNTY

STEPHEN TOM OKEYO ABEBE......................RESPONDENTS

RULING

By an application of notice of motion application dated 22nd October, 2014 under Order 42 rule 6 (1) and (6), Order 50 rule 6 and Order 51 rule (1) of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act, the appellant/applicant is seeking the following orders:-

Reinstatement of the interim orders of injunction given on 29th September, 2014 which lapsed on 21st October, 2014.

That the notice of motion dated 26th September, 2014 be given a hearing date on priority.

The application is premised on the grounds set out on the body of the application and the supporting affidavit of Donald O. Owang' advocate.

The reasons advanced are that the motion dated 26th September, 2014 was fixed for hearing on 21st October, 2014 but counsel for the parties inadvertently diarised the date as 22nd October, 2014 as a result of which they did not attend court.

That it is for that reason that the application was stood over and the interim orders of injunction restraining the Respondents from evicting the Applicant from the premises known as House No. D 31 New Ngara was never extended.

There is no replying affidavit on record opposing this application.

When this matter came up for hearing on 20th May, 2015, parties agreed and it was adopted as the order of court that this application be dispensed with by way of written submissions. I however note that although the parties stated that they had complied as ordered, the submissions on record relate to the application dated. I do not seen order for the hearing of the application dated 26th September, 2014. I shall therefore consider the depositions in the application.

It has not been contested that the party’s counsel inadvertently mis-diarised the matte. I therefore find that it is in the interest of justice that this application be allowed.

This court has severally held that punishing an advocate for every sundry of blunders does not necessarily accord justice to the client.

And that Indeed, the main purpose of litigation, namely  the hearing and determination of disputes, should be  fostered  rather than  hindered  and errors   and lapses  should not necessary  debar  a litigant  from the  pursuit  of his rights under  the law by ousting  him from the judgment  seat. In this case, the applicant timeously filed this application to remedy the situation.

In Philip Kelpto Chemwolo  & Another V Augustine  Kubende (1986) KLR 492, the Court of  Appeal  was categorical that:

“ Blunders  will continue  to be made from time to time  and it does not  follow  that because  a mistake  has been  made a party should suffer  the  penalty of not  having  his case  determined  on its merits”…..  I think the broad equity approach to this matter is that   unless there if fraud or intention to overreach there is no error or default that cannot be put right by payment of costs.  The  court as  is often said  exists  for the purposes of deciding  the rights of the parties  and not  for the  purpose  of imposing  discipline.”

InMwai V Murai No. 4 (1982) KLR Madan JAsaid.

“A mistake is a mistake, it is no less a mistake  because it  is an unfortunate  slip.  It is no less pardonable because it was committed by Senior Counsel though in the case of Junior counsel, the court might feel compassionate more readily.  A blunder on a point of law can be a mistake.  The door of justice is not closed because a mistake has been made by a person of experience  who ought  to have known better.  The  court may not  forgive  or condone it but it ought  certainly to do whatever  is necessary  to rectify  it if  the interests  of justice  so dictate.”

The speed with which the Appellant filed this application is an indication of good faith and that the application is not meant to defeat the interest of justice or to steal a match on the respondent. In the circumstances, I find that the application has merit and make orders as follows:-

That the interim order of injunction given on 29th September, 2014 which lapsed on 21st October, 2014 be and is hereby reinstated pending further orders of this court.

That the notice of motion dated 26th September, 2014 be given a hearing date in the registry on priority basis.

Costs shall be in the cause.

Dated, signed and delivered in open court at Nairobi this 29th day of October, 2015.

R.E.ABURILI

JUDGE