Stanley Mange’eli v Phoenix of E.A Assurance Co. Ltd [2019] KEHC 5750 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MAKUENI

CIVIL APPEAL NO. 154 OF 2018

STANLEY MANGE’ELI............................................................................APPICANT

-VERSUS-

PHOENIX OF E.A ASSURANCE CO. LTD......................................RESPONDENT

(From original Criminal Case No. 144 of 2014 at SRM’S court at Kilungu)

RULING

Introduction:

1. The Applicant via a notice of notion dated 05/02/2019 seeks the order dated 30/01/2019 be set aside and that Application dated 16/11/2018 be reinstated and heard on merit inter alia.

2. The application is premised on the provisions of Order 12 Rule 7 and Order 51 Rule 1 Civil Procedure Rule, 2010 and Section 1A, 1B and 3A CPA Cap 21 Laws of Kenya.

3. It is based on the grounds that the application was for inter parte hearing on 30/01/2019 but same was dismissed for non-attendance of all the parties.

4.  The Applicant avers that his advocate gave another advocate brief to prosecute same application but he was not present when the case was called out in the courtroom, thus the same was dismissed for non-attendance.

5.  Thus the applicant seeks same to be reinstated for hearing on merit.

6.  The same is supported by affidavit of Muendo Muasa Uvyu sworn on 05/02/2019 which reiterates the grounds above.

7.  The Respondent has not filed replying affidavit as by 09/03/2019 when the ruling was prepared.

8.   On 14/02/2019, the parties agreed that replying affidavit was to be filed within 14 days, that is by 28/02/2019. The time lapsed without any reply being availed to this court.

9.  The application is deemed to be unopposed. The court still has to satisfy itself that the same is merited to be granted.

10. On 16/11/2018, the application came for hearing under certificate of urgency and the court granted temporary orders for stay and directed same to be served for inter parte hearing on 21/11/2018.

11. On 21/11/2018, the Respondent did not attend when matter came for hearing despite being served. There was no replying affidavit to oppose it.

12. The court granted prayer no. 3 and directed same to be heard on 30/01/2019 and trial court file was ordered to be availed to court by that day.

13. Come on 30/11/2019, the Respondent this time was represented and had filed replying affidavit to oppose the application.

14. However, the Applicant was not present and thus the court dismissed the same for non-attendance. On 11/02/2019, the applicant presented now the instant application under Certificate of urgency as the aforesaid dismissal automatically vacated interim stay orders thus the danger of execution being levied against Applicant.

15. The matter was fixed for inter parte hearing on 14/02/2019. The supporting affidavit state that on 30/01/2019, advocate Mutune was to hold brief for Applicant advocate but he was not in court when matter was called and dismissed.

16. Mr. Mutune has not sworn an affidavit to confirm that. However, the record of 30/01/2019, shows that, the same Mutune advocate appeared in court in the same file and held brief for Mutuku advocate.

17. The averment by Uvyu advocate is thus not reflecting the truth. Thus the aforesaid statement above is enough ground to dismiss this application for misleading court.

18. However, the court is always called to temper justice with mercy for the interest of justice.

19. To avoid multiplicity of applications and to expedite the matter, the court will indulge the applicant but with a price to be paid by the Applicant’s advocate.

20. Thus the court thus makes the following orders: -

1) The application herein dated 05/02/2019 is allowed as prayed in prayers 2&3 on condition that Kshs.10,000/= is paid to the Respondent within 14 days by Uvyu advocate personally.

2) In default of the above (1) the application will stand dismissed with costs to the Respondent.

SIGNED, DATED AND DELIVERED IN OPEN COURT AT MAKUENI THIS 31ST DAY OF MAY, 2019.

......................

C. KARIUKI

JUDGE