1. After directing parties to canvass the notice of motion dated 7/7/2023 by written submissions, this court now finds itself in the unfortunate position in which it has to deliver a ruling on further directions instead of a substantive ruling.
2. The turn of events has been occasioned by several reasons and most importantly, there appears to be a notice of motion dated 8/07/2023 that apparently should be the subject for determination and not the one dated 7/07/2023. The subsisting interim orders that were issued by my brother Okongo J in Kisumu ELCOS E001/2023 before the original file was eventually transferred to this court is in respect of the notice of motion dated 8/07/2023.
3. From the court record, this particular notice of motion is missing and the only document in the court record dated 8/07/2023 is the amended originating summons (OS).
4. It is not lost to this court that the respondent filed a replying affidavit deposed on 26/09/2023 in respect of this amended OS and not on the notice of motion. Similarly, the bulk of his submissions dated 4/10/2023 are on this amended OS and it is probable that the respondent is not privy of the motion dated 8/07/2023.
5. In the circumstances and bearing in mind that this court has to carry out substantive justice in rendering its decision, I find that it is imperative that the applicants’ counsel do address this court on the notices of motion dated 7/7/2023 and 8/7/2023. Mention on 12/02/2024 for further directions.
It is so ordered.
Delivered and Dated at Siaya this 8th day of February 2024.
HON. A. Y. KOROSS
JUDGE
08/2/2024
Ruling delivered virtually through Microsoft Teams Video Conferencing Platform in the Presence of:
Mr. Akech for the applicants
N/A for the respondent
Court assistant: Ishmael Orwa