1. The subject application is the notice of motion by the exparte applicants dated 28th May 2024 stated to be brought under Sections 80 and 3A of the Civil Procedure Act, Order 1XB Rule 8 and XLIV Rule 1, 2 and 3 of the Civil Procedure Rules, seeking that the orders made on 26th September 2023 dismissing the chamber summons application dated 4th May 2024 be reviewed, varied and/ or set aside and the aforesaid application be reinstated.
2. The application is premised on the grounds on its face and is supported by the affidavit of James Chetalam. He deposes that the application seeking leave to institute judicial review proceedings was set for mention on 26th September 2023; that none of the parties and their representatives attended court on that date and the court dismissed the application for non-attendance; that the advocate tasked with holding their brief in that matter failed to attend court as he was preoccupied in another court; that failure to appear in court was unintended; that the applicants should not be punished for mistake of their advocate as they are keen to prosecute the matter having being aggrieved by the decision of the County Commissioner; that the respondents will not be prejudiced if the application is allowed; that the delay in filing the instant application dismissal is not so inordinate as to be inexcusable. They urge the court to allow the application in the interest of justice.
3. The application is not opposed.
4. Counsel for the applicants argued the application orally on 19th September, 2024. He relied on the grounds in the application and the supporting affidavit, Article 159 of the Constitution, Sections 1A, 1B, 3 & 3A of the Civil Procedure Act and the case of Catherine Kigasia Kivai v Ernest Ogesi Kivai & 4 others (2021) eklr.
5. I have considered the application, the grounds, the supporting affidavit, oral submissions, the cited authority and I find the only issue for determination to be whether the suit should be reinstated.
6. Reinstatement of a suit is a discretion of the court. The case of John Nahashon Mwangi V Kenya Finance Bank Limited (in liquidation) 2015 eKLR sets out the principles governing reinstatement of the suit. In that case the court stated;
“The fundamental principles of justice are enshrined in the entire Constitution and specifically in Article 159 of the Constitution. Article 50 coupled with article 159 of the Constitution on right to be heard and the constitutional desire to serve substantive justice to all the parties, respectively, constitutes the defined principles which should guide the court in making a decision on such matter of reinstatement of a suit which has been dismissed by the court. These principles were enunciated in a masterly fashion by courts in a legion of decisions which I need not multiply except to state that; courts should sparingly dismiss suits for want of prosecution for dismissal is a draconian act which drives away the plaintiff in an arbitrary manner from the seat of judgment. Such acts are comparable only to the proverbial ‘’Sword of the Damocles’’ which should only draw blood where it is absolutely necessary. The same test will apply in an application to reinstate a suit and a court of law should consider whether there are reasonable grounds to reinstate such suit-of course after considering the prejudice that the defendant would suffer if the suit was reinstated against the prejudice the Plaintiff will suffer if the suit is not reinstated.”
7. In the mater before the court, the chamber summons application filed on 5th May 2023 was dismissed on 26th September 2023 for non-attendance. The application seeking to reinstate it was filed on 21st June 2024, 8 months after the application was dismissed with no explanation offered by the applicants for the delay. Although advocate for the applicants has explained that he failed to attend court because the advocate holding their brief was held up in another court, he did not avail any evidence in support for example, no cause list was annexed to his supporting affidavit showing the case he was handling and before which court he was held up.
8. I am not entirely convinced by the argument put forward by the applicants to explain nonattendance in court by their advocate and the delay of over eight months in filing the application for reinstatement of the chamber summons application. However, since the respondent did not oppose the application and any prejudice suffered by the respondent can be addressed by ensuring the expeditious disposal of the application and taking into consideration that dismissal of a suit is a draconian order which drives away the litigant from the seat of justice, I am of the view that justice will be served in reinstating the application to afford the applicants an opportunity to prosecute their intended appeal but with strict conditions.
9. Consequently, I allow prayers 1 and 2 of the application dated 29th May 2025 and direct the applicants to set down the chamber summons application for hearing within 21 days from the date hereof with the help of the Deputy Registrar failing which the reinstatement order will lapse.
Dated, signed and delivered at Kabarnet this 3nd day of December 2024.
Ruling delivered virtually in the anbsence of:-
N/A for the Applicants
N/A for the Respondents
Court Assistant: Ian
2. The application is premised on the grounds on its face and is supported by the affidavit of James Chetalam. He deposes that the application seeking leave to institute judicial review proceedings was set for mention on 26th September 2023; that none of the parties and their representatives attended court on that date and the court dismissed the application for non-attendance; that the advocate tasked with holding their brief in that matter failed to attend court as he was preoccupied in another court; that failure to appear in court was unintended; that the applicants should not be punished for mistake of their advocate as they are keen to prosecute the matter having being aggrieved by the decision of the County Commissioner; that the respondents will not be prejudiced if the application is allowed; that the delay in filing the instant application dismissal is not so inordinate as to be inexcusable. They urge the court to allow the application in the interest of justice.
3. The application is not opposed.
4. Counsel for the applicants argued the application orally on 19th September, 2024. He relied on the grounds in the application and the supporting affidavit, Article 159 of the Constitution, Sections 1A, 1B, 3 & 3A of the Civil Procedure Act and the case of Catherine Kigasia Kivai v Ernest Ogesi Kivai & 4 others (2021) eklr.
5. I have considered the application, the grounds, the supporting affidavit, oral submissions, the cited authority and I find the only issue for determination to be whether the suit should be reinstated.
6. Reinstatement of a suit is a discretion of the court. The case of John Nahashon Mwangi V Kenya Finance Bank Limited (in liquidation) 2015 eKLR sets out the principles governing reinstatement of the suit. In that case the court stated;
“The fundamental principles of justice are enshrined in the entire Constitution and specifically in Article 159 of the Constitution. Article 50 coupled with article 159 of the Constitution on right to be heard and the constitutional desire to serve substantive justice to all the parties, respectively, constitutes the defined principles which should guide the court in making a decision on such matter of reinstatement of a suit which has been dismissed by the court. These principles were enunciated in a masterly fashion by courts in a legion of decisions which I need not multiply except to state that; courts should sparingly dismiss suits for want of prosecution for dismissal is a draconian act which drives away the plaintiff in an arbitrary manner from the seat of judgment. Such acts are comparable only to the proverbial ‘’Sword of the Damocles’’ which should only draw blood where it is absolutely necessary. The same test will apply in an application to reinstate a suit and a court of law should consider whether there are reasonable grounds to reinstate such suit-of course after considering the prejudice that the defendant would suffer if the suit was reinstated against the prejudice the Plaintiff will suffer if the suit is not reinstated.”
7. In the mater before the court, the chamber summons application filed on 5th May 2023 was dismissed on 26th September 2023 for non-attendance. The application seeking to reinstate it was filed on 21st June 2024, 8 months after the application was dismissed with no explanation offered by the applicants for the delay. Although advocate for the applicants has explained that he failed to attend court because the advocate holding their brief was held up in another court, he did not avail any evidence in support for example, no cause list was annexed to his supporting affidavit showing the case he was handling and before which court he was held up.
8. I am not entirely convinced by the argument put forward by the applicants to explain nonattendance in court by their advocate and the delay of over eight months in filing the application for reinstatement of the chamber summons application. However, since the respondent did not oppose the application and any prejudice suffered by the respondent can be addressed by ensuring the expeditious disposal of the application and taking into consideration that dismissal of a suit is a draconian order which drives away the litigant from the seat of justice, I am of the view that justice will be served in reinstating the application to afford the applicants an opportunity to prosecute their intended appeal but with strict conditions.
9. Consequently, I allow prayers 1 and 2 of the application dated 29th May 2025 and direct the applicants to set down the chamber summons application for hearing within 21 days from the date hereof with the help of the Deputy Registrar failing which the reinstatement order will lapse.
Dated, signed and delivered at Kabarnet this 3nd day of December 2024.
Ruling delivered virtually in the anbsence of:-
N/A for the Applicants
N/A for the Respondents
Court Assistant: Ian