Skip to content
JudgmentSUKARI INDUSTRIES LIMITED VS MAGDALINE AGUTU3 min read

SUKARI INDUSTRIES LIMITED VS MAGDALINE AGUTU

High Court at Homabay High Court · · Kiarie W. Kiarie

  1. Magdaline Agutu Odero moved the court through a Notice of Motion dated the 4th day of October 2023 under sections 1A, 1B, & 3A of the Civil Procedure Act and Order 51 Rule1 of the Civil Procedure Rules. She is seeking the following orders:
  2. That for this application, Hon Bay HCCA No.70 of 2022 Sukari Industries versus Risper Odira Adek be consolidated in this instant application.
  3. That this honourable court be pleased to set aside its judgments entered herein on November 21st, 2023, and November 14th, 2023.
  4. Upon granting prayer two above, this court will be pleased to reinstate this instant appeal to enable it to be heard on merit by both parties herein.
  5. That the respondent/applicant be condemned to pay the application costs.
  6. The application was premised on the following grounds:
  7. Since the inception of this suit and the consolidated one, the respondent applicant was only served with the record of appeal and no other records and/or correspondences.
  8. That upon perusing the court files on 2/1/2024 in this honourable court’s registry, the respondent’s advocate on record discovered that this matter proceeded, and judgment was delivered without his knowledge.
  9. Upon perusing the court file, I found that Kerario Marwa & Co. Advocates' firm was being recorded and entertained as advocates on record for the respondent but not ourselves. Thus, there was confusion as far as representation was concerned.
  10. That the respondent/applicant will suffer great prejudice if this appeal is not restored and/or reinstated to enable her to protect her rights of being heard, which were stripped off because of such confusion of representation.
  11. That the appellant’s appeal had no merit and, in the event that the proceedings could proceed without a mix-up of representation, the same could be dismissed.
  12. It is in the best interest of justice that this application be allowed as prayed so that the constitutional rights of the respondent/applicant are protected.
  13. That this application is promptly brought.
  14. That the appellant shall not suffer any prejudice in the event that this application is allowed.
  15. That the application is guided by the principles of the law of equity.
  16. The respondent opposed the applications and stated:
  17. That there has been an inordinate delay in bringing the instant application since 14/11/2023 and 21/11/2013, respectively, when the judgment was entered in favour of the appellant.
  18. The applications that seek to be consolidated do not arise from the same subject matter as seen on the face of the application. The suits were filed on different dates and/or days, and judgments were entered on various dates, and therefore, they cannot be consolidated.
  19. The questions of facts in the matters are not the same; hence, they should be heard separately.
  20. That consolidating the suits would cloud the issues in dispute and frustrate the just determination of the suits.
  21. That the application dated 2nd January 2024 is incompetent, fatally defective and an abuse of the court, the same has not raised any provision of law for consolidation and/or setting aside judgments entered on 14/11/2023 and 21/11/2023, respectively.
  22. That the applicant’s application dated 2nd January 2024 does not satisfy the criteria for consolidation and/or setting aside judgments entered on 14/11/2023 and 21/11/2023, is thus without merit and should thus be dismissed with costs.
  23. I agree that these two suits are different and based on different facts. However, the applications are similar and raise similar issues.
  24. Upon my perusal of the High Court Civil Appeal No. E070 of 2022, I did not find any application for consolidation. I also did not see anything authorizing the applicant to prosecute the current application for Risper Odira Adek, the respondent therein.
  25. In High Court Civil Appeal No. E071 of 2022, the applicant has averred that the only document she was served with was the record of appeal. Despite this contention, the respondent has attached a Mention Notice dated the 27th day of June 2023. It was served on the firm of Odingo & Company Advocates. They affixed their date stamp on the 4th day of July 2023. The notice indicates that the matter was coming up for mention for directions on the 5th day of July 2023.
  26. A copy of transaction forwarding submissions to the applicant's advocates through the email address soodingoadvocates@gmail.com was attached to the replying affidavit. It shows that there were two attachments to the mail dated 24th day of August 2023 sent at 17:31.
  27. The applicant in this case was not candid about why she did not respond to the appeal, attend the court for directions after being served, or, above all, file her submissions after she was served with the appellant’s.
  28. I find no merit in the application to set aside the judgment delivered on November 21st, 2023. The application is dismissed with costs.

Delivered and signed at Homa Bay this 9th day of April 2024

    SUKARI INDUSTRIES LIMITED VS MAGDALINE AGUTU SUKARI INDUSTRIES LIMITED VS MAGDALINE AGUTU