REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI HIGH COURT CIVIL APPEAL NUMBER 98 OF 2017 BERNARD MURIGI MAITHYA.............................................APPELLANT/RESPONDENT VERSUS HUSSEIN ABDUL KADIR.........................................................................1 ST RESPONDENT MFI OFFICE SOLUTIONS LIMITED..............................2ND RESPONDENT/APLICANT DIAMOND TRUST BANK KENYA LIMITED......................................3 RD RESPONDENT THE REGISTRAR OF MOTOR VEHICLES.........................................4 TH RESPONDENT THE OFFICER COMMANDING CENTRAL POLICE STATION......5TH RESPONDENT (An appeal from the ruling of the Senior Resident magistrate at Milimani delivered by Hon. L W Kabaira (Ms) on 27th February, 2017 in CMCC No. 2500 of 2011) RULING This is an application by way of Notice of Motion seeking to set aside the order dismissing the applicant’s application dated 18 th June, 2018 which sought to strike out the Memorandum of Appeal dated 9th March, 2017. This application dated 24th October, 2018 is brought under Sections 1A, 1B and 3A of the Civil Procedure Act, Order 12 Rule 7 and Order 51 Rule 1 of the Civil Procedure Rules. It is opposed and the respondents have filed replying affidavits and cited some authorities. The first affidavit annexed to the application was withdrawn and another one filed which angered the respondents contesting that, this was un-procedural and that it should be expunged from the record. Counsel have filed submissions which I have noted. The withdrawal of the first affidavit has been explained to the satisfaction of the court. No prejudice has been alleged on the part of the respondents. The reasons advanced for non-appearance of counsel for the 2 nd Respondent, who is the applicant herein, on the date the application was dismissed, has equally been explained by the counsel appearing. In any case, courts are enjoined to sustain suits and applications rather than dismissing them, so that every party has their day in court. The order for dismissal made on 18 th July, 2018 is hereby set aside and the application reinstated for hearing. The parties shall now take a hearing date convenient to them for the application dated 18 th June, 2018. The costs of this application shall however, be paid by the 2nd respondent to the appellant. Dated, signed and delivered at Nairobi on 20th day of June, 2019.
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A. MBOGHOLI MSAGHA JUDGE
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