REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KISUMU MISC. CIVIL APPLICATION NO. 247 OF 2011 IN THE MATTER OF REFERENCE UNDER RULE 11 (2) OF THE ADVOCATES (REMUNERATION) ORDER UPON TAXATION OF PARTY AND PARTY COSTS BETWEEN MONICA ALUOCH OTIENO....................................................................1ST APPLICANT ROBERT OMOLO OSAWO....................................................................2ND APPLICANT ALSAMUS OBIYA ODONGO..................................................................3RD APPLICANT JOSEPH BWOGA AMATA………..........................................................4TH APPLICANT VERSUS JOSEPH BWOGA ONDIJO........................................................................RESPONDENT RULING By a notice of motion dated 20.6.17 brought under Order 12 rule 7 of the Civil Procedure Rules and section 1A, 1B and 3A of the Civil Procedure Act and all enabling provisions of the Law; the applicants pray for orders that: 1. The Honourable Court be pleased to set aside the orders dated 17.5.17 dismissing the application dated 10.4.17 for non-attendance 2. Upon granting prayer 1, the Honourable Court be pleased to set a hearing date for the said application dated 3. Costs of the application be provided for The application is based on the grounds among others that the applicant was misled by the Court Registry that the judge would not be sitting on the day the order of dismissal was made. The application is supported by an affidavit sworn on 20.6.17 by Robert OumaNjoga, advocate for the applicants who reiterates the grounds on the face of the application. Attached to the affidavit is a copy of the High Court Cause list for 17.5.17 marked RON 1 which indicates that Hon. Majanja J. was not sitting on that date and that all the matters listed before him were to be mentioned before the Deputy Registrar. The replying affidavit sworn on 8.5.17 by the respondent is a reply to an application dated 10.4.17 and not the present application.
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I have considered the application in the light of the supporting affidavit. A copy of the High Court Cause list for 17.5.17 shows that the application dated 10.4.17 was listed for hearing on that date before Hon. Justice Majanja. The same cause list shows that the judge was not sitting on that date and that all matters were to be mentioned before the deputy Registrar. The applicant’s counsel’s non-attendance before the judge on the day the application dated 10.4.17 was dismissed has been clearly explained and the court is satisfied that the information on the cause list was misleading. Consequently, it is hereby orderedTHAT:1) The notice of motion dated 20.6.17 be and is hereby is allowed and the order dated 17.5.17 dismissing the application dated 10.4.17 for non-attendance is set aside 2) Notice of motion dated 10.4.17 be listed for hearing on merit 3) Costs shall be in the cause DATED AND DELIVERED THIS 12th DAY OF October, 2017 T.W.CHERERE JUDGE Read in open court in the presence ofCourt Assistant - Felix Applicants - N/A Respondent - N/A
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