Case ID:166613

Principal Mariakani Secondary School & another v Maglena Amina Kamau [2020] eKLR

Case Metadata

Case Number:

Civil Appeal 99 of 2020

Parties:

Principal Mariakani Secondary School & Board of Governors, Mariakani Sec. School v Maglena Amina Kamau

Date Delivered:

17 Nov 2020

Case Class:

Civil

Court:

High Court at Mombasa

Case Action:

Ruling

Judge(s):

Dorah O. Chepkwony

Citation:

Principal Mariakani Secondary School & another v Maglena Amina Kamau [2020] eKLR

Court Division:

Civil

County:

Mombasa

Case Outcome:

Application allowed

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

CIVIL APPEAL NO.99 OF 2020

1. THE PRINCIPAL MARIAKANI SECONDARY SCHOOL

2. THE BOARD OF GOVERNORS,

MARIAKANI SEC. SCHOOL....APPELLANTS/APPLICANTS

- VERSUS -

MAGLENA AMINA KAMAU............................RESPONDENT

RULING

1. On the

13

th

August, 2020

the Applicants filed a

Notice of Motion

application dated

7

th

August, 2020

pursuant to

Sections 1A, 1B, 3A

and

63 (b)

and

(e),

all of the

Civil Procedure Act

and

Order 50 Rule 15

of the

Civil Procedure Rules, 2010

. The Application seeks for the following Orders:

a. Spent;

b. That the orders of this court of 4/8/2020 dismissing the Applicants’ Notice of Motion dated 21

st

July, 2020 and filed on 24

th

July, 2020 be set aside and the said application be reinstated;

c. That costs of this application be in the cause and/or as directed by the Court;

2. The grounds upon which the Application is premised are;

a. That the Firm of M/S Odhiambo S.E, Advocates for the Appellant/Applicants did not attend court virtually because he could not Link despite several attempts to do so.

b. That the failure to link virtually was not intentional but due

to the reasons stated above.

c. That the Appellants stand to suffer and their Motor vehicle in possession of the auctioneers will be sold and more goods are likely to be removed and sold in execution of the Judgment if the application is not reinstated.

d. That it is not the Appellants’ mistake that their Advocate did not attend Court.

e. That it is in the interest of justice that the Application be allowed.

3. The application was further supported by an

Affidavit

sworn on

7

th

August, 2020

by

Samuel Odhiambo Eleakim

, the Appellants/ Applicants’ advocate. He deponed that the application dated

21

st

July, 2020

had been fixed for hearing on

4

th

August, 2020

. On the said date, he met the Court Assistant, one Mr. Kaunda who informed him that the matter would proceed virtually at around

12 O’clock

. That he further informed

Mr. Ogutu,

Counsel for the Respondent that the matter would proceed at

12 noon.

The

Link

was sent to him at

11.30 am

but when he tried to log in, the connection could not go through. He annexed correspondences wherein he informed the court assistant that the Link could not connect him to the Virtual Court.

4.

Mr. Odhiambo

further asserted that he took a proactive measure to follow up with the Court I.T Personnel only for the Link to be sent to him at

14.10pm

when the court session had ended. Besides all the efforts, the Counsel deposed that the Chief Magistrate, Hon. Evans Makori had sent an email Communication to all the advocates acknowledging that on

4

th

August, 2020

there was a general problem with the

Virtual

Microsoft Teams Network

. On the foregoing, the Counsel averred that the circumstances were beyond the Appellants’ control and the orders issued then should be set aside in the interest of justice.

5. The Respondent opposed the application vide a

Replying Affidavit

sworn by her advocate,

Seth J. Ongiri.

He deponed that all parties were supplied with the

Virtual Link

and it is not explained why the Applicants were the only ones faced with challenges of logging in. In any event, if there were any challenges in accessing the Link, the Applicants’ advocate could have used a different gadget to access the court. The Counsel further submitted that the application is lacking in merit and the application sought to be reinstated seeks prayers which have already been determined.

6. On

25

th

August, 2020

, parties were directed to canvass the application dated

7

th

August, 2020

by way of written submissions. The Applicants’ Counsel filed their written submissions on

9

th

September, 2020

while the Respondent filed theirs on

5

th

October, 2020

.

Analysis and Determination

7. In considering this kind of application at hand, I find it relevant to invoke the provisions of the Statute.

Section 1A(1)

of the

Civil Procedure Act

provides for an overriding objective which is that the objective of this Act and the rules made hereunder is to facilitate the just expeditious, proportionate and affordable resolution of the court disputes governed by the Act.

Section 3A

thereof provides that nothing shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.

8. The general principles of law in applications of this nature are anchored in the realm of judicial discretion. The Constitution of Kenya has deposited judicial power with Judicial Officers for the purpose of being used to adjudicate disputes and administer justice substantively and fairly without due regard to technicalities. (

See Article 159 of the Constitution

).

9. The court’s discretion is therefore free and is intended to be exercised to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake or error. But it is not designed to assist a person who deliberately seeks, whether by evasion or otherwise, to obstruct or delay the cause of justice

(

See the case of

Shah –vs- Mbogo).

10. Emphasis for the need to have all parties heard on merit is to be traced under

Article 50

of the

Constitution

. Therefore, a litigant who is not guilty of dilatory conduct should not be debarred from pursuing his/her rights in court because of inadvertence of the Counsel.

11. In the present case, the main ground upon which review is being sought is for the dismissal Order of

4

th

August, 2020

to be set aside to enable parties be heard on the merit. According to the affidavit evidence, the Applicants’ Counsel failed to attend the

Virtual Court Proceedings

on the material day on the ground that he had challenges in accessing the

Microsoft Teams Link

. He has annexed communications to that effect and the proactive efforts he undertook in bid to attend the court virtually. This court further takes judicial notice of the email sent by the Chief Magistrate to Mombasa Law Society Members acknowledging the technical hitch on that material day.

12. As this application stands, I am satisfied that the Applicant has shown sufficient cause for non-attendance in Virtual Court on

4

th

August, 2020

.

13. Applying the provisions of

Sections 1A, 1B, 3A,

of the

Civil Procedure Act,

the

Notice of Motion

dated

7

th

August, 2020

requesting this court to set aside the dismissal Order is allowed as prayed.

14. The cost of this application shall abide with the outcome of the Appeal.

It is hereby so ordered.

DATED, SIGNED

and

DELIVERED

at

MOMBASA

on this

17

th

day of

November, 2020.

D. O. CHEPKWONY

JUDGE

In view of the declaration of measures restricting court operations due to

the

COVID-19

pandemic and in light of the directions issued by His Lordship the Chief Justice on

15

th

March 2020,

this Ruling has been delivered to the parties online with their consent. They have waived compliance with

Order 21 Rule 1

of the Civil Procedure Rules which requires that all Judgments and Rulings be pronounced in open Court.

D. O. CHEPKWONY

JUDGE