Shirin Jiwa v Ismailia Economic Development Society Limited [2019] KEHC 12230 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

CIVIL CASE  NO 313 OF 2013

SHIRIN JIWA.......................................PLAINTIFF

VERSUS

THE ISMAILIA ECONOMIC DEVELOPMENT

SOCIETY LIMITED......................DEFENDANT

RULING

Before this Court the Notice of Motion dated 18th December 2018 by which ISMAILIA ECONOMIC DEVELOPMENT SOCIETY LIMITED,(the Defendant/Applicant herein) sought the following Orders:-

“1. THAT the Honourable Court do review, set aside and vacate its order and decree dismissing the Applicant’s Counterclaim herein.

2. THAT this Honourable Court do reinstate the said Counterclaim and consider the same on its merits and grant Judgment as appropriate.

3.  THAT the costs of this application be provided for.”

The application was supported by the Affidavit sworn on 18th December 2018 by Mr. ZUL MOHAMED an Advocate of the High Court of Kenya.  The application was duly served upon Counsel for the Plaintiff/Respondent but no reply was filed.

The background of the matter is as follows.  On 7th December 2018, this Court dismissed the Defendant’s Amended Counterclaim dated 29th February 2016, on grounds that there was no evidence to show that the Amended Defence and Counter-claim had ever been served upon the Plaintiff.

Counsel avers that in fact service was effected on Messrs Khaminwa and KhaminwaAdvocates for the Plaintiff on 7th March 2016, but that due to inadvertence, he omitted to file the Affidavit of Service proving this.  The said Affidavit of Service Annexture “ZM2” was attached to the Notice of Motion.

I have perused the said Affidavit of Service dated 8th March 2018.  The same indicates that the Amended Defence and Counter-claim were duly served upon Counsel for the Plaintiff, on 7th March 2018, well before the hearing date of 1st October 2018.  Had this Affidavit been properly filed then the court would not have dismissed the counter-claim.

Failure to file the Affidavit of Service is a mistake on the part of counsel which mistake ought not be visited upon the Client/Defendant.  For this reason I do allow the present application.  I set aside my orders of 7th December 2018 and reinstate the Defendant’s Amended counter-claim dated 9th February 2016 for hearing.  The Amended Defence and Counter-claim to be served upon the Plaintiff.  Hearing will now proceed on 29/10/2019.

Read in open Court.

Mr. Ochieng holding brief for Mr. Mohamed for Applicant.

Dated in Nairobi this …1st.day of August, 2019.

………………………………...

Justice Maureen A. Odero