- Misera wanted the decision delivered by Justice John Onyiego in September 2018 suspended and the case be heard afresh, for the reason that his advocate was never informed of the hearing dates.
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The High Court has declined to suspend a decision that would have prevented the EACC from recovering Sh8.6 million from a former government official.
Justice Nixon Sifuna at the same time declined to reopen the case as had been sought by Boniface Misera, the then head of procurement at the Ministry of Local Government.
Misera wanted the decision delivered by Justice John Onyiego in September 2018 suspended and the case be heard afresh, for the reason that his advocate was never informed of the hearing dates.
His absence and that of his advocate in court during the hearing of the case that had been filed by the Ethics and Anti-corruption Commission saw the Judge finding him liable over the Sh283 million cemetery fiasco.
Onyiego subsequently ordered EACC to recover Sh8.6 million from him.
The monies according to the commission were part of the Sh283 million, fraudulently acquired in the purchase of public cemetery land, by the defunct City Council of Nairobi.
Onyiego at the time said the decision to proceed with the case despite their absence was informed by the Civil Procedure Rules with regard to the non-attendance of a party.
Aggrieved, Misera applied to suspend the decision.
But Sifuna said he is not persuaded by the reasons given by Misera to warrant him interfering with Judge Onyiego's decision.
"While this court sympathizes and is even tempted to empathize with him on this and is further tempted to join him in blaming his advocate, it is not a court of sympathy but a court of law," said Sifuna.
The judge explained that due diligence requires a client to visit or contact his advocate and inquire about the progress of his case.
"He may also in the ideal, visit the court registry from time to time, to inquire about the status as well as progress of his case," he said.
"Mere lamentations by Misero as is the case in this application are not enough. this is a court of law, and not a court of conjecture, emotions, mercy or sympathy. whipping up its emotions will count for nothing."