'Board of Management (Governors) Works High School has come to this court praying that this honorable court be pleased to set aside the orders issued on 24th April 2024 dismissing this appeal for want of prosecution and reinstate the same for full hearing and determination and that Costs be in the cause herein.
The application is based on grounds that there is a valid order made on 24th April 2024 dismissing the Appellant''s/Applicant''s appeal for want of prosecution. The applicant contends that the delay in prosecuting the appeal was inadvertent as the lower court file serialized as CMELC 372 of 2018 Symon Njuguna Warui v Joseph Karanja & 2 Others is still active and therefore a delay in getting typed proceedings. The delay has also been exacerbated by the fact that the Judicial Officer handling the matter is on suspension.
The applicant contends that although the notice to show cause was received, the Advocate in conduct inadvertently logged in into Deputy Registrar''s ELC court link and by the time they logged into the correct link the matter had already been mentioned and dismissal orders given. Mistake of counsel should not be meted on the litigant. The appeal is not frivolous, it raises serious issues on the exercise of the trial Magistrate''s discretion in refusing to set aside ex-parte proceedings and the consequent judgment dated 11th March, 2022 ex-parte and the appellant is still interested in prosecuting it. This application has been brought promptly and in good faith. This honorable court has the power to grant the orders sought and it is just and expedient that the same be granted in the interest of justice.
The applications is supported by the affidavit of Affline Aoko, an advocate of the High Court of Kenya and practicing as such with the firm of Sheth and Wathigo Advocates, which law firm has the conduct of this matter on behalf of the Appellant/Applicant, who reiterates the ground that the delay in prosecuting the appeal was inadvertent as the lower court file serialized as CMELC 372 of 2018 Symon Njuguna Warui v Joseph Karanja & 2 Others is still active. There is a pending application by some of the Defendants now Respondents in this appeal, to have their names struck off from the suit.
According to the deponent, the Application is at the submissions stage, the matter was to be mentioned on 16th June} 2024 to confirm filing of submissions and take a ruling date but could not proceed since the presiding Magistrate Hon, Isaac Orenge is on suspension. The mention was deferred to 5th June, 2024 for possible directions on reallocation.
The aforementioned prevailing status on the lower court file has made it difficult to obtain typed proceedings to enable the applicant prepare the Record of Appeal. The delay in filing the said record of appeal has therefore not been inadvertent on the part of the Applicant,
The learned advocate confirms that they received the notice to show cause but due to internal misfiling, she was unable to retrieve it in time to file the necessary response in writing. Unfortunately, on 24th of April 2024 when the matter was slated for mention, she mistakenly logged into the wrong court link and upon realization of the mistake, the matter had already been dismissed for want of prosecution by the honorable court.
The aforementioned oversight was purely mistake of counsel which should not be meted on an innocent litigant The appeal is not frivolous, it raises serious issues on the exercise of the trial Magistrate''s discretion in refusing to set aside ex-parte proceedings and the consequent judgment dated 11th March, 2022 ex-parte and the appellant is still interested in prosecuting it. This application has been brought promptly and in good faith. This honorable court has the power to grant the orders sought and it is just and expedient that the same be granted in the interest of justice.
The respondent has opposed the application by virtue of the affidavit of Symon Njuguna Warui stating that the honorable court did dismiss the applicant appeal on the 24th April 2024 after a notice was duly served on the applicant''s counsel and after failure to attend court. The judgement in the lower court was delivered on the 11th March 2022. A decree was extracted on 21st March 2022.
Execution proceedings commenced and upon proclamation by the auctioneers the applicant sought a stay of execution in an application dated 21st July 2022. A memorandum of appeal was filed on 9th November 2022. Since the appeal was filed no record of appeal has ever been filed.
The applicant has not shown any due diligence that they made to ensure the proceedings are typed. There is not a single letter written to court showing or indicating the applicant was making any follow-ups in following the proceedings in court.
The court has not also been served with any receipt showing the proceedings were ever paid for by the applicant. The fact that one respondent filed an application on 6th September 2023 shows clearly that the applicant had not paid for proceedings and that’s why the file was still lying in the registry and was not in the typing pool.
The applicants are guilty of laches as they filed an appeal, never paid for proceedings and are now crying foul after the court justly dismissed the appeal for lack of prosecution. The argument that the judicial officer Hon. Isaac Orenge court No 4 who was handling the lower court case file is a suspension is neither here nor there
The applicants were aware the case was coming up for dismissal and in paragraph 7 admit they knew the notice to show cause but never filed any response to it thus the court justly dismissed the case. The argument that counsel logged in a wrong court cannot be true as the notice was issued by the High court were clear as to where the matter would be mentioned.
According to the respondent, Counsel is an agent of the party and a party is bound by his counsel''s mistakes. It is trite law that litigation has to come to an end and the maxim should apply in the current case. No good reason has been given as to why the appeal should be reinstated while it''s clear the applicant slept on its right, have never paid for proceedings over one and a half'' years after-fifing the appeal.
The application has no merit but a gimmick to continue denying the 1st respondent from enjoying and developing his property despite having a legitimate title deed from the year 2013 upto date.
I have considered the application and the applicant’s submissions and do find that the applicant has not explained sufficiently why the record of Appeal has not been filed. Moreover, the applicant has not demonstrated that he has applied for proceedings to enable him file a record of appeal. The applicant has not shown sufficient reason that caused his advocate not to attend court on the date scheduled for the notice to show cause why the appeal should not have been dismissed for want of prosecution. Moreover, the applicant did not bother to file a response to the notice to show cause for the dismissal of the appeal for want of prosecution.
It is the duty of court to do justice between the parties, Section 1B of Civil Procedure Act, Cap. 21 provides that there should be just determination, effective and timely disposal of proceedings and effective use of judicial time and resources. It is upon this duty of overriding objective that enables this court to take time and put in resources to dismiss suits that have been unprosecuted for more than one year to ensure that other active cases have ample time to be determined. The court will not allow matters to be filed and whereby once the parties obtain interim orders then proceed to keep the file idle. This causes the clogging the justice system and unacceptable for nothing.
In the case of Josphat Oginda Sasia – Versus - Wycliffe Wabwile Kiiya [2022] eKLR, the court held “But as has been held time and again before, all the court needs to do when a party does not take steps to prosecute his matter is for it to “give notice” of the intent to dismiss the matter. Such notice can be by way of publishing the intent through the Cause Lists, Websites or even court notice boards. (see the cases of Fran Investments Limited vs. G4S Security Services Limited [2015] eKLR and Jim Rodgers Gitonga Njeru – Versus - Al-Husnain Motors Limited & 2 others [2018] eKLR).”
In the case of “Ivita – Versus - Kyumbu [1984] KLR 441 the Court laid down principles for issuance of an order of dismissal of suit for want of prosecution. It stated:-
“The test is whether the delay is prolonged and inexcusable, and, if it is, can justice be done despite such delay. Justice is justice to both the Plaintiff and Defendant; so both parties to the suit must be considered and the position of the judge too, because it is no easy task for the documents, and, or witnesses may be missing and evidence is weak due to the disappearance of human memory resulting from lapse of time. The Defendant must however satisfy the court that it will be prejudiced by the delay or even that the plaintiff will be prejudiced. He must show that justice will not be done in the case due to the prolonged delay on the part of the plaintiff before the court will exercise its discretion in his favour and dismiss the action for want of prosecution. Thus, even if delay is prolonged if the court is satisfied with the plaintiff''s excuse for the delay, the action will not be dismissed, but it will be ordered that it be set down for hearing at the earliest available time”.
This court finds that the applicant has not demonstrated sufficient reasons why the appeal should be reinstated, however, due to the fact that the myriad errors were committed by the appellant’s counsel, this court will not punish the appellant for the mistakes committed by the advocate and therefore do allow the application on the conditions that the record of appeal be filed within 30 days failure of which the appeal stands dismissed. The applicant to bear the costs of the application in any event.
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The application is based on grounds that there is a valid order made on 24th April 2024 dismissing the Appellant''s/Applicant''s appeal for want of prosecution. The applicant contends that the delay in prosecuting the appeal was inadvertent as the lower court file serialized as CMELC 372 of 2018 Symon Njuguna Warui v Joseph Karanja & 2 Others is still active and therefore a delay in getting typed proceedings. The delay has also been exacerbated by the fact that the Judicial Officer handling the matter is on suspension.
The applicant contends that although the notice to show cause was received, the Advocate in conduct inadvertently logged in into Deputy Registrar''s ELC court link and by the time they logged into the correct link the matter had already been mentioned and dismissal orders given. Mistake of counsel should not be meted on the litigant. The appeal is not frivolous, it raises serious issues on the exercise of the trial Magistrate''s discretion in refusing to set aside ex-parte proceedings and the consequent judgment dated 11th March, 2022 ex-parte and the appellant is still interested in prosecuting it. This application has been brought promptly and in good faith. This honorable court has the power to grant the orders sought and it is just and expedient that the same be granted in the interest of justice.
The applications is supported by the affidavit of Affline Aoko, an advocate of the High Court of Kenya and practicing as such with the firm of Sheth and Wathigo Advocates, which law firm has the conduct of this matter on behalf of the Appellant/Applicant, who reiterates the ground that the delay in prosecuting the appeal was inadvertent as the lower court file serialized as CMELC 372 of 2018 Symon Njuguna Warui v Joseph Karanja & 2 Others is still active. There is a pending application by some of the Defendants now Respondents in this appeal, to have their names struck off from the suit.
According to the deponent, the Application is at the submissions stage, the matter was to be mentioned on 16th June} 2024 to confirm filing of submissions and take a ruling date but could not proceed since the presiding Magistrate Hon, Isaac Orenge is on suspension. The mention was deferred to 5th June, 2024 for possible directions on reallocation.
The aforementioned prevailing status on the lower court file has made it difficult to obtain typed proceedings to enable the applicant prepare the Record of Appeal. The delay in filing the said record of appeal has therefore not been inadvertent on the part of the Applicant,
The learned advocate confirms that they received the notice to show cause but due to internal misfiling, she was unable to retrieve it in time to file the necessary response in writing. Unfortunately, on 24th of April 2024 when the matter was slated for mention, she mistakenly logged into the wrong court link and upon realization of the mistake, the matter had already been dismissed for want of prosecution by the honorable court.
The aforementioned oversight was purely mistake of counsel which should not be meted on an innocent litigant The appeal is not frivolous, it raises serious issues on the exercise of the trial Magistrate''s discretion in refusing to set aside ex-parte proceedings and the consequent judgment dated 11th March, 2022 ex-parte and the appellant is still interested in prosecuting it. This application has been brought promptly and in good faith. This honorable court has the power to grant the orders sought and it is just and expedient that the same be granted in the interest of justice.
The respondent has opposed the application by virtue of the affidavit of Symon Njuguna Warui stating that the honorable court did dismiss the applicant appeal on the 24th April 2024 after a notice was duly served on the applicant''s counsel and after failure to attend court. The judgement in the lower court was delivered on the 11th March 2022. A decree was extracted on 21st March 2022.
Execution proceedings commenced and upon proclamation by the auctioneers the applicant sought a stay of execution in an application dated 21st July 2022. A memorandum of appeal was filed on 9th November 2022. Since the appeal was filed no record of appeal has ever been filed.
The applicant has not shown any due diligence that they made to ensure the proceedings are typed. There is not a single letter written to court showing or indicating the applicant was making any follow-ups in following the proceedings in court.
The court has not also been served with any receipt showing the proceedings were ever paid for by the applicant. The fact that one respondent filed an application on 6th September 2023 shows clearly that the applicant had not paid for proceedings and that’s why the file was still lying in the registry and was not in the typing pool.
The applicants are guilty of laches as they filed an appeal, never paid for proceedings and are now crying foul after the court justly dismissed the appeal for lack of prosecution. The argument that the judicial officer Hon. Isaac Orenge court No 4 who was handling the lower court case file is a suspension is neither here nor there
The applicants were aware the case was coming up for dismissal and in paragraph 7 admit they knew the notice to show cause but never filed any response to it thus the court justly dismissed the case. The argument that counsel logged in a wrong court cannot be true as the notice was issued by the High court were clear as to where the matter would be mentioned.
According to the respondent, Counsel is an agent of the party and a party is bound by his counsel''s mistakes. It is trite law that litigation has to come to an end and the maxim should apply in the current case. No good reason has been given as to why the appeal should be reinstated while it''s clear the applicant slept on its right, have never paid for proceedings over one and a half'' years after-fifing the appeal.
The application has no merit but a gimmick to continue denying the 1st respondent from enjoying and developing his property despite having a legitimate title deed from the year 2013 upto date.
I have considered the application and the applicant’s submissions and do find that the applicant has not explained sufficiently why the record of Appeal has not been filed. Moreover, the applicant has not demonstrated that he has applied for proceedings to enable him file a record of appeal. The applicant has not shown sufficient reason that caused his advocate not to attend court on the date scheduled for the notice to show cause why the appeal should not have been dismissed for want of prosecution. Moreover, the applicant did not bother to file a response to the notice to show cause for the dismissal of the appeal for want of prosecution.
It is the duty of court to do justice between the parties, Section 1B of Civil Procedure Act, Cap. 21 provides that there should be just determination, effective and timely disposal of proceedings and effective use of judicial time and resources. It is upon this duty of overriding objective that enables this court to take time and put in resources to dismiss suits that have been unprosecuted for more than one year to ensure that other active cases have ample time to be determined. The court will not allow matters to be filed and whereby once the parties obtain interim orders then proceed to keep the file idle. This causes the clogging the justice system and unacceptable for nothing.
In the case of Josphat Oginda Sasia – Versus - Wycliffe Wabwile Kiiya [2022] eKLR, the court held “But as has been held time and again before, all the court needs to do when a party does not take steps to prosecute his matter is for it to “give notice” of the intent to dismiss the matter. Such notice can be by way of publishing the intent through the Cause Lists, Websites or even court notice boards. (see the cases of Fran Investments Limited vs. G4S Security Services Limited [2015] eKLR and Jim Rodgers Gitonga Njeru – Versus - Al-Husnain Motors Limited & 2 others [2018] eKLR).”
In the case of “Ivita – Versus - Kyumbu [1984] KLR 441 the Court laid down principles for issuance of an order of dismissal of suit for want of prosecution. It stated:-
“The test is whether the delay is prolonged and inexcusable, and, if it is, can justice be done despite such delay. Justice is justice to both the Plaintiff and Defendant; so both parties to the suit must be considered and the position of the judge too, because it is no easy task for the documents, and, or witnesses may be missing and evidence is weak due to the disappearance of human memory resulting from lapse of time. The Defendant must however satisfy the court that it will be prejudiced by the delay or even that the plaintiff will be prejudiced. He must show that justice will not be done in the case due to the prolonged delay on the part of the plaintiff before the court will exercise its discretion in his favour and dismiss the action for want of prosecution. Thus, even if delay is prolonged if the court is satisfied with the plaintiff''s excuse for the delay, the action will not be dismissed, but it will be ordered that it be set down for hearing at the earliest available time”.
This court finds that the applicant has not demonstrated sufficient reasons why the appeal should be reinstated, however, due to the fact that the myriad errors were committed by the appellant’s counsel, this court will not punish the appellant for the mistakes committed by the advocate and therefore do allow the application on the conditions that the record of appeal be filed within 30 days failure of which the appeal stands dismissed. The applicant to bear the costs of the application in any event.
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