Winstone Wabuke Malibisi v Cleophas Wanyaa Werunga [2017] KEHC 7162 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT BUNGOMA

LAND & ENVIRONMENT CASE NO.16 OF 2016

WINSTONE WABUKE MALIBISI………………….…………………………..PLAINTIFF

VERSUS

CLEOPHAS WANYAA WERUNGA……………………………..…………DEFENDANT

RULING

[1]. The applicant brings this notice of motion under section 3 3A of the Civil Procedure Rules and Order 22 rule 10 and 11.  He prays that the exparte judgement delivered herein and all consequential orders be set aside and that the defendant be given conditional leave to defend the suit on merit.

[2]. The application is supported by the affidavit of Cleophas Wanyaa Werunga dated 21/10/2016 who states that he was served with pleadings in this matter early in the year 2016.  That he instructed the firm of M/s Simiyu Wafula.  That he paid all the advocate’s fees and waited for the advocate to give him a date when to appear in Court.  That his son went to inquire in Court at Bungoma where he was told that the matter was slated for judgement on 20/9/2016.  That he went to his advocate s and found out from the clerk that his advocate had no practicing Certificate and had moved out from the office.  That he is sickly and that mistake of Counsel should not be visited on him.

[3]. The application is opposed by the respondent who swore a replying Affidavit on 22/11/2016.  He swears that the respondent was served with summons to enter appearance on 24/2/2016.  That his advocates were served with a mention notice on 10/6/2016.  That Applicant’s advocates never filed any pleadings other than the advocate’s notice.  The applicant’s advocate never attended the mention date.  The said advocate were served with a hearing notice on 3/6/2016 and failed to attend Court on 31/8/2016 two months later.  That after the case was heard the Court wrote to the parties vide the Deputy Registrar’s letter of 13/9/2016 and again the applicant and his Counsel failed to attend despite his son having seen the notice in Court.  The respondent states that the doctor’s letter produced herein is for the purpose only of aiding this application as no treatment notes are attached and it is unknown when treatment commenced.  Finally that the applicant has no defence to the respondent’s claim as seen in the affidavit and the respondent’s occupation is not disputed.

[4]. Section 3 and 3A of the Civil Procedure Act obliges parties and their advocates to be proactive and take part in matters they file in Court.  One cannot any longer file a matter through an advocate or take pleadings served on him to an advocate and go to sleep.  When the suit proceeds in his absence, he cannot wake up from his slumber and say mistake of Counsel should not be visited on the client!  Each and every party is enjoined by Section 3 and 3A of the Civil Procedure Rules to be diligent and follow up the matter in his Counsel’s chambers and in Court.

The applicant in this Case was served with each and every mention/hearing date when the Case came to Court.  He did not attend.  His advocate did not attend either.  The respondent was not obliged to serve any pleadings to a party who has an advocate on record.  That would have been unethical. Whether the advocate had a Certificate of practice or not did not concern the respondent herein.  There are other avenues to address that including suits for professional negligence.  In any case, there is nothing produced before me to show the advocate in question did not have a practicing Certificate.  There is no affidavit by the Court Clerk who met the applicant’s son in the advocate’s chambers.  The Court cannot act on hearsay.

All in all, I am not convinced that the applicant’s application has any merits.

I do dismiss it with costs to the respondents.

Ruling read in open court.

DATEDandDELIVEREDatBUNGOMAthis  10thday of   March, 2017.

S.N. MUKUNYA

JUDGE

In the presence of:

Court Assistants         -  Chemtai/Joy

Plaintiff   -  Present

Defendant  -  Absent