Ol Kalou Farmers Sacco Bank Ltd & 1 other v James K. Mwaura

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAKURU Civil Case 211 of 2007 OL KALOU FARMERS SACCO BANK LTD…........…….....1ST APPLICANT/DEFENDANT CO-OPERATIVE BANK OF KENYA LIMITED…..............…2ND APPLICANT/DEFENDANT VERSUS JAMES K. MWAURA...................................................…………..RESPONDENT/PLAINTIFF RULING The respondent in the instant application, James Karanja Mwaura instituted this suit against the applicants herein, Co-operative Bank of Kenya Limited and Ol Kalou Farmers Sacco Bank Limited seeking a declaration that the charge over Nyandarua/Upper Gilgil/582 is illegal, null and void and that the 2nd applicant be ordered to unconditionally release the original title to the suit property to the respondent. The suit also seeks to restrain permanently by an order of injunction the 2 nd applicant from selling the suit property. Simultaneously filed with the plaint was chamber summons for temporary restraining orders. An interpartes hearing date was fixed for 22nd October, 2007 and the applicants duly served. On that day, there was no appearance either for the applicants or their counsel and the matter proceeded exparte. Thereafter, the court (Koome, J) granted the orders sought. Two months later, on 18th December, 2007, the 2nd applicant brought the present application praying that the exparte order of injunction in question be discharged, varied and/or set aside and laying the blame for its failure to attend court on the date set for the hearing on its erstwhile advocates. It further contents that the exparte injunction was obtained by concealment and misrepresentation of material facts. In reply, the respondent has averred that the application has been brought late, otherwise the rest of the 23 paragraphed affidavit deals only with the merit of the suit. I have considered the application, submissions and the authorities cited. The court has unfettered discretion to discharge or vary or set aside, under Order 39 rule 4 of the Civil Procedure Rules, any order for an injunction, or application by any party dissatisfied with the order. The only consideration in such application calling for the exercise of the court’s discretion is whether the 2 nd applicant was prevented from attending the court for the hearing of the application by a good and sufficient reason. The 2nd applicant has averred that its erstwhile advocates M/s. Njeri Wamithi and Company Advocates failed to attend. In its supplementary affidavit, the 2 nd applicant has annexed an affidavit sworn by Irene Njeri Wamithi in which she avers that she inadvertently failed to diarize the date of 22 nd October, 2007 as a result of which she did not attend the court on that day. A mistake can be committed by even the most diligent lawyer as mistake is to human. The respondent has not challenged or rebutted that averment by showing that the applicant was reckless or deliberately failed to attend court. The applicant timeously brought this application, only two months after the exparte order was made. There will be no

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