Abiud Kitui Wanakai v The Chief Magistrate Kibera Law Courts & 3 others

IN THE HIGH COURT AT NAIROBI MILIMANI LAW COURTS JUDICIAL REVIEW DIVISION MISC. APPL. NO. 461 OF 2008 BETWEEN ABIUD KITUI WANAKAI …......................................... APPLICANT AND THE CHIEF MAGISTRATE KIBERA LAW COURTS .....................................1ST RESPONDENT THE DIRECTOR OF CRIMINAL INVESTIGATIONS DEPARTMENT..............2ND RESPONDENT THE COMMISSIONER OF POLICE ................ 3RD RESPONDENT THE ATTORNEY GENERAL ..............................4TH RESPONDENT RULING 1. By the Notice of Motion dated 17 th February 2013 the ex-parte applicant seeks an order that the orders of 7th August 2013 be set aside and the Motion seeking orders of judicial review dated 11 th November 2008 be fixed hearing. 2. It is not is dispute that when the said Motion came up for hearing on 7 th August 2013, counsel for the ex-parte applicant had been served with a hearing notice. In the circumstances, I dismissed the application with costs in the absence of the applicant and his advocate. 3. The applicant now seeks the Court’s discretion to set aside the dismissal order on the ground that the mistake was one occasioned by the advocate and not his client. 4. In my view this may be a good reason but the Court has to look at the whole circumstances. In this case, the Motion for judicial review was filed in 2008, about 6 years ago. After the dismissal, the application to set aside was filed about 7 months later. A diligent client would have in the circumstances taken an interest in his case to ensure that it is prosecuted. His attitude appears to stem from either disinterest or as his counsel submitted, an opportunity for him to settle certain liabilities afforded by the shield provided by pending proceedings and the existing orders. 5. My discretion is exhausted. This case cannot be allowed back on the court rolls. The Notice of

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