1. This ruling is in respect of the Applicants’ Notice of Motion dated 26th February 2024 seeking the following Orders:
1. Spent.
2. THAT this Honourable ruling of 17th October 2023, dismissing the applicant’s application for non-attendance be set aside and/or varied and the Appellant/Applicant be allowed to prosecute his suit.
3. THAT the costs of this Application be in the cause.
2. The affidavit of Nelson Mandela Kabwere Advocate for the applicant supports the application. The reason stated for non-attendance in court was that on 17th October 2023, Counsel joined the virtual online link but had technical hitches and could not be admitted to the virtual platform. He stated that he borrowed another device and successfully joined the court but he found that the application had already been dismissed and was advised to move the court appropriately.
3. He deposed that he was not able to obtain the lower court proceedings to enable him to file the record of appeal and given an opportunity he would file the record. He further deposed that the appeal has a high chance of success and that failure to prosecute the suit was not deliberate or negligent. That the mistakes of the counsel should not be meted out on the client.
4. Counsel invoked the principle that a party should not be condemned unheard unless in exceptional circumstances. He also stated that all the respondents have been served but none of them have ever appeared in court, therefore there will be no prejudice on their part if the orders sought are granted.
The Respondents’ Grounds of Opposition and Replying affidavit
5.The Respondents filed grounds of opposition dated 15th July 2024 stating that the application is frivolous, bad in law and an abuse of the court process. Further, the application is an afterthought, unmeritorious, unfounded and the same lacks legal foundation. That the application is incompetent, baseless, flawed, and untenable thus the court should proceed to dismiss it.
6.In addition to the grounds of opposition, the 1st Respondent swore a replying affidavit and deposed that the applicant filed this appeal and did not serve them until it was dismissed.
7. He stated that the reason for the dismissal and the reason for non-attendance in court was not properly explained. The 1st respondent deposed that despite the court order issued the appellant should be served with the appeal personally, the applicant neglected to do so. Further, the applicant has not demonstrated that he requested the proceedings of the lower court and that the applicant has been reluctant to prosecute the matter. He also stated that the principles for review of orders have not been demonstrated and do not apply to the circumstances of this case.
8. On 27th July 2024, parties were given time to file their written submissions but the Applicant did not file his written submissions.
Respondent's Submissions
9. Counsel for the Respondents submitted that the reasons given by the applicant for failure to appear for the hearing of the application are not true because, on the material date, the matter was scheduled for interparty hearing and the applicant had not served the respondent as was directed by the court.
10. Counsel submitted that the conduct of the applicant is wanting and questionable due to deliberate mistakes. Noting that this matter was filed in the year 2021 this appeal has been pending for the last 3 years unprosecuted. Counsel for the respondents submitted that the applicant is not keen to follow up on the appeal.
11. The trial court decided the case in the respondents' favour and they submitted that they ought to access their property without any impediment or interruption by the applicant. They also highlighted that the record of appeal is yet to be filed and the applicant is holding the respondents hostage with a frivolous application.
12. The respondents’ submission therefore is that this application is an afterthought, unmeritorious, unfounded, premature, incompetent and urged the court to proceed to dismiss it with costs.
Analysis and Determination
13. When this matter was in court on 22nd May 2024, the court directed that the application dated 26th February 2024 would be heard by way of written submissions and specific directions were given on the order in which the submissions were to be filed and served and the matter was set for mention for a ruling date on 17th July 2024. On the 17th of July 2024, Counsels were directed to file submissions contemporaneously within seven days from the said date since none of them had filed submissions and the matter was slated for ruling on the 31st of July 2024.
14. It is noted that until the date of writing the ruling herein, the applicant has not filed submissions. The court finds that the applicant failed, neglected and/or refused to prosecute the application for the reasons that the same was to be prosecuted by way of written submissions. The said application is thus for dismissal for want of prosecution under Order 12 of the Civil Procedure Rules which provides that “If on the day fixed for hearing, after the suit has been called on for hearing outside the court, only the defendant attends and he admits no part of the claim, the suit shall be dismissed except for good cause to be recorded by the court.”
15. However, the court has taken into account the history of this appeal and the various applications filed by the Appellant/Applicant and considers it prudent to consider the merit of the application.
16. The Applicant filed the present application seeking to set aside/vary the order issued on 17th October 2023 dismissing the applicant’s application for non-attendance. The applicant sought to be allowed to prosecute the suit.
17. Order 12(1) of the Civil Procedure Rules (2010) provides that:
“If on the day fixed for hearing, after the suit has been called on for hearing outside the court, neither party attends, the court may dismiss the suit.”
18.Order 12(1) goes on to provide that:
“Where under this Order judgment has been entered or the suit has been dismissed, the court, on application, may set aside or vary the judgment or order upon such terms as may be just.”
19. The decision of whether or not to allow an application for setting aside a judgment or an order for dismissal of a suit due to the non-attendance of a Plaintiff is within the wide discretion of the court. This discretion has to be exercised judiciously, as was stated in the case of Shah vs Mbogo (1979) EA 116 quoted with approval in the case of John Mukuha Mburu v Charles Mwenga Mburu [2019] eKLR, where that court held thus:
“......this discretion is intended to be exercised to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake or error, but is not designated to assist a person who has deliberately sought, whether by evasion or otherwise to obstruct or delay the cause of justice.”
20. The case of Racheal Njango Mwangi (Suing as Personal Representative of the Estate of Mwangi Kabaiku) v Hannah Wanjiru Kiniti & another [2021] eKLR explains it even further.
“For the Court to exercise its discretion in favour of the Applicant, he or she has satisfied it that there is sufficient cause or reason to warrant it to be put into use in setting aside the order of dismissal and subsequently reinstate the suit. Sufficient Cause was defined by the Supreme Court of India in Parimal vs Veena which was cited with approval in the case of Wachira Karani v Bildad Wachira [2016] eKLR. In the case, the said Supreme Court stated that:-
“sufficient cause” is an expression which has been used in large number of statutes. The meaning of the word “sufficient” is “adequate” or “enough,” in as much as may be necessary to answer the purpose intended. Therefore the word “sufficient” embraces no more than that which provides a platitude which when the act is done suffices to accomplish the purpose intended in the facts and circumstances existing in a case and duly examined from the view point of a reasonable standard of a curious man. In this context, "sufficient cause" means that party had not acted in a negligent manner or there was want of bona fide on its part given the facts and circumstances of a case or the party cannot be alleged to have been "not acting diligently" or "remaining inactive." However, the facts and circumstances of each case must afford sufficient ground to enable the court concerned to exercise discretion for the reason that whenever the court exercises discretion, it has to be exercised judiciously”
The court in the above case added that while deciding whether there is a sufficient cause or not, the court must bear in mind the object of doing substantial justice to all the parties concerned and that the technicalities of the law should not prevent the court from doing substantial justice and doing away with the illegality perpetuated on the basis of the judgment impugned before it. The test to be applied is whether the defendant honestly and sincerely intended to remain present when the suit was called for hearing. Sufficient cause is thus the cause for which the defendant could not be blamed for his absence. Sufficient cause is a question of fact and the court has to exercise its discretion in the varied and special circumstances in the case at hand. There cannot be a straight-jacket formula of universal application. Thus, the defendant must demonstrate that he was prevented from attending court by a sufficient cause.”
21. In the present case, the Applicant’s Counsel stated that non-attendance was occasioned by a technical hitch in logging into the online virtual court.
22. The court has considered the grounds put forward by consent for non-attendance in court on 17th October 2023 when the application dated 29th May 2023 was dismissed. The court has further looked at the entire court record and the conduct of this appeal from the time of its inception to the time when the application dated 29th May 2023 was dismissed. The court considers that the issue for determination is whether the court should exercise its discretion in favour of setting aside the order of dismissal of the application dated 29th May 2023.
23. In the court’s view the entire conduct of the appeal and the applications filed spell of ineptitude, deliberate and/ or negligent failure to prosecute the appeal and the applications filed, ignorance and/ or failure by Counsel for the Appellant/Applicant to follow and comply with the court’s directions.
24. The court record shows that this appeal was admitted on 24th November 2021. On 10th March 2022 when the appeal was fixed for pre-trial directions, the appellant was directed to file a record of appeal and to comply with Order 42 Rule 13 of the Civil Procedure Rules. On 20th June 2022, the appellant's Counsel indicated that he had not obtained court proceedings and was thus unable to file the record of appeal. However, the court pointed out that the lower court file had been forwarded and showed that typed proceedings were in the court file. The appellant's counsel was given a last chance to file the record of appeal and the matter was set for mention to confirm filing.
25. On 13th July 2022 Counsel for the appellant did not attend court. The court referred the matter to the Deputy Registrar to issue a Notice to Show Cause why the appeal should not be dismissed for want of prosecution. Mention for the Notice to show cause was set for 20th September 2022. On the said date the appellant's Counsel did not attend court and the appeal was dismissed for want of prosecution.
26. The appellant filed an application under a certificate of urgency dated 29th May 2023 seeking to set aside the court’s order of 20th September 2022 dismissing the appeal. The application was set for hearing on 26th July 2023. On the said date, the applicant was directed to serve the application on the Counsel on record for the Respondents before the trial court and the respondents personally. The Counsel was also directed to serve the respondents personally and the application was set for hearing on 17th October 2023.
27. On 17th October 2023, when the application came up for hearing Counsel for the applicant was absent, consequently the application was dismissed for non-attendance and the file was marked as closed. This dismissal led to the filing of the application dated 26th February 2024 the subject matter of this ruling.
28. The court has looked at the previous application dated 29th May 2023 which sought to set aside the order of dismissal of the appeal. The court notes that the grounds relied on for Counsel’s non-attendance on 20th September 2022 are an exact replica of the grounds adduced in the application at hand. The replication of the reasons given, in the court's view speaks to the veracity and truthfulness of the reasons given and the court is inclined to believe that without proof of the allegations made, the same cannot be taken to be true. The court thus considers the reasons given for non-attendance are more likely untrue. For this reason, the court is of the view that the applicant did not show “sufficient cause" for non-attendance in court on 17th October 2023.
29. Further, the court notes that the application set to be reinstated was dismissed on 17th October 2023. Counsel states that he attended court on the same date and was informed that the application had been dismissed yet he filed the application under consideration on 26th February 2024, over four months later. The above, conduct taken together with what has been set out from the court record, the court considers there is ample evidence that Counsel for the Applicant has been indolent in prosecuting the appeal herein and the applications filed.
30. Further, the fact that certified copies of typed proceedings of the lower court were available as early as 11th November 2021 yet no record of appeal was filed, shows that the claim that the applicant has been ready to prosecute the appeal is not made in good faith and the same is not true. The court finds the conduct of the Appellant concerning the matters herein is not deserving of the exercise of the court's discretion.
31. For the foregoing reasons, the court finds the application dated 26th February 2024 has no merit and the same is hereby dismissed with costs to the respondents.
Delivered, dated and signed at Kitui this 31st day of July, 2024.
The Ruling was read virtually in the presence of;
Musyoki - Court Assistant
Mandela for the Appellant/Applicant
No attendance for the Respondent
1. Spent.
2. THAT this Honourable ruling of 17th October 2023, dismissing the applicant’s application for non-attendance be set aside and/or varied and the Appellant/Applicant be allowed to prosecute his suit.
3. THAT the costs of this Application be in the cause.
2. The affidavit of Nelson Mandela Kabwere Advocate for the applicant supports the application. The reason stated for non-attendance in court was that on 17th October 2023, Counsel joined the virtual online link but had technical hitches and could not be admitted to the virtual platform. He stated that he borrowed another device and successfully joined the court but he found that the application had already been dismissed and was advised to move the court appropriately.
3. He deposed that he was not able to obtain the lower court proceedings to enable him to file the record of appeal and given an opportunity he would file the record. He further deposed that the appeal has a high chance of success and that failure to prosecute the suit was not deliberate or negligent. That the mistakes of the counsel should not be meted out on the client.
4. Counsel invoked the principle that a party should not be condemned unheard unless in exceptional circumstances. He also stated that all the respondents have been served but none of them have ever appeared in court, therefore there will be no prejudice on their part if the orders sought are granted.
The Respondents’ Grounds of Opposition and Replying affidavit
5.The Respondents filed grounds of opposition dated 15th July 2024 stating that the application is frivolous, bad in law and an abuse of the court process. Further, the application is an afterthought, unmeritorious, unfounded and the same lacks legal foundation. That the application is incompetent, baseless, flawed, and untenable thus the court should proceed to dismiss it.
6.In addition to the grounds of opposition, the 1st Respondent swore a replying affidavit and deposed that the applicant filed this appeal and did not serve them until it was dismissed.
7. He stated that the reason for the dismissal and the reason for non-attendance in court was not properly explained. The 1st respondent deposed that despite the court order issued the appellant should be served with the appeal personally, the applicant neglected to do so. Further, the applicant has not demonstrated that he requested the proceedings of the lower court and that the applicant has been reluctant to prosecute the matter. He also stated that the principles for review of orders have not been demonstrated and do not apply to the circumstances of this case.
8. On 27th July 2024, parties were given time to file their written submissions but the Applicant did not file his written submissions.
Respondent's Submissions
9. Counsel for the Respondents submitted that the reasons given by the applicant for failure to appear for the hearing of the application are not true because, on the material date, the matter was scheduled for interparty hearing and the applicant had not served the respondent as was directed by the court.
10. Counsel submitted that the conduct of the applicant is wanting and questionable due to deliberate mistakes. Noting that this matter was filed in the year 2021 this appeal has been pending for the last 3 years unprosecuted. Counsel for the respondents submitted that the applicant is not keen to follow up on the appeal.
11. The trial court decided the case in the respondents' favour and they submitted that they ought to access their property without any impediment or interruption by the applicant. They also highlighted that the record of appeal is yet to be filed and the applicant is holding the respondents hostage with a frivolous application.
12. The respondents’ submission therefore is that this application is an afterthought, unmeritorious, unfounded, premature, incompetent and urged the court to proceed to dismiss it with costs.
Analysis and Determination
13. When this matter was in court on 22nd May 2024, the court directed that the application dated 26th February 2024 would be heard by way of written submissions and specific directions were given on the order in which the submissions were to be filed and served and the matter was set for mention for a ruling date on 17th July 2024. On the 17th of July 2024, Counsels were directed to file submissions contemporaneously within seven days from the said date since none of them had filed submissions and the matter was slated for ruling on the 31st of July 2024.
14. It is noted that until the date of writing the ruling herein, the applicant has not filed submissions. The court finds that the applicant failed, neglected and/or refused to prosecute the application for the reasons that the same was to be prosecuted by way of written submissions. The said application is thus for dismissal for want of prosecution under Order 12 of the Civil Procedure Rules which provides that “If on the day fixed for hearing, after the suit has been called on for hearing outside the court, only the defendant attends and he admits no part of the claim, the suit shall be dismissed except for good cause to be recorded by the court.”
15. However, the court has taken into account the history of this appeal and the various applications filed by the Appellant/Applicant and considers it prudent to consider the merit of the application.
16. The Applicant filed the present application seeking to set aside/vary the order issued on 17th October 2023 dismissing the applicant’s application for non-attendance. The applicant sought to be allowed to prosecute the suit.
17. Order 12(1) of the Civil Procedure Rules (2010) provides that:
“If on the day fixed for hearing, after the suit has been called on for hearing outside the court, neither party attends, the court may dismiss the suit.”
18.Order 12(1) goes on to provide that:
“Where under this Order judgment has been entered or the suit has been dismissed, the court, on application, may set aside or vary the judgment or order upon such terms as may be just.”
19. The decision of whether or not to allow an application for setting aside a judgment or an order for dismissal of a suit due to the non-attendance of a Plaintiff is within the wide discretion of the court. This discretion has to be exercised judiciously, as was stated in the case of Shah vs Mbogo (1979) EA 116 quoted with approval in the case of John Mukuha Mburu v Charles Mwenga Mburu [2019] eKLR, where that court held thus:
“......this discretion is intended to be exercised to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake or error, but is not designated to assist a person who has deliberately sought, whether by evasion or otherwise to obstruct or delay the cause of justice.”
20. The case of Racheal Njango Mwangi (Suing as Personal Representative of the Estate of Mwangi Kabaiku) v Hannah Wanjiru Kiniti & another [2021] eKLR explains it even further.
“For the Court to exercise its discretion in favour of the Applicant, he or she has satisfied it that there is sufficient cause or reason to warrant it to be put into use in setting aside the order of dismissal and subsequently reinstate the suit. Sufficient Cause was defined by the Supreme Court of India in Parimal vs Veena which was cited with approval in the case of Wachira Karani v Bildad Wachira [2016] eKLR. In the case, the said Supreme Court stated that:-
“sufficient cause” is an expression which has been used in large number of statutes. The meaning of the word “sufficient” is “adequate” or “enough,” in as much as may be necessary to answer the purpose intended. Therefore the word “sufficient” embraces no more than that which provides a platitude which when the act is done suffices to accomplish the purpose intended in the facts and circumstances existing in a case and duly examined from the view point of a reasonable standard of a curious man. In this context, "sufficient cause" means that party had not acted in a negligent manner or there was want of bona fide on its part given the facts and circumstances of a case or the party cannot be alleged to have been "not acting diligently" or "remaining inactive." However, the facts and circumstances of each case must afford sufficient ground to enable the court concerned to exercise discretion for the reason that whenever the court exercises discretion, it has to be exercised judiciously”
The court in the above case added that while deciding whether there is a sufficient cause or not, the court must bear in mind the object of doing substantial justice to all the parties concerned and that the technicalities of the law should not prevent the court from doing substantial justice and doing away with the illegality perpetuated on the basis of the judgment impugned before it. The test to be applied is whether the defendant honestly and sincerely intended to remain present when the suit was called for hearing. Sufficient cause is thus the cause for which the defendant could not be blamed for his absence. Sufficient cause is a question of fact and the court has to exercise its discretion in the varied and special circumstances in the case at hand. There cannot be a straight-jacket formula of universal application. Thus, the defendant must demonstrate that he was prevented from attending court by a sufficient cause.”
21. In the present case, the Applicant’s Counsel stated that non-attendance was occasioned by a technical hitch in logging into the online virtual court.
22. The court has considered the grounds put forward by consent for non-attendance in court on 17th October 2023 when the application dated 29th May 2023 was dismissed. The court has further looked at the entire court record and the conduct of this appeal from the time of its inception to the time when the application dated 29th May 2023 was dismissed. The court considers that the issue for determination is whether the court should exercise its discretion in favour of setting aside the order of dismissal of the application dated 29th May 2023.
23. In the court’s view the entire conduct of the appeal and the applications filed spell of ineptitude, deliberate and/ or negligent failure to prosecute the appeal and the applications filed, ignorance and/ or failure by Counsel for the Appellant/Applicant to follow and comply with the court’s directions.
24. The court record shows that this appeal was admitted on 24th November 2021. On 10th March 2022 when the appeal was fixed for pre-trial directions, the appellant was directed to file a record of appeal and to comply with Order 42 Rule 13 of the Civil Procedure Rules. On 20th June 2022, the appellant's Counsel indicated that he had not obtained court proceedings and was thus unable to file the record of appeal. However, the court pointed out that the lower court file had been forwarded and showed that typed proceedings were in the court file. The appellant's counsel was given a last chance to file the record of appeal and the matter was set for mention to confirm filing.
25. On 13th July 2022 Counsel for the appellant did not attend court. The court referred the matter to the Deputy Registrar to issue a Notice to Show Cause why the appeal should not be dismissed for want of prosecution. Mention for the Notice to show cause was set for 20th September 2022. On the said date the appellant's Counsel did not attend court and the appeal was dismissed for want of prosecution.
26. The appellant filed an application under a certificate of urgency dated 29th May 2023 seeking to set aside the court’s order of 20th September 2022 dismissing the appeal. The application was set for hearing on 26th July 2023. On the said date, the applicant was directed to serve the application on the Counsel on record for the Respondents before the trial court and the respondents personally. The Counsel was also directed to serve the respondents personally and the application was set for hearing on 17th October 2023.
27. On 17th October 2023, when the application came up for hearing Counsel for the applicant was absent, consequently the application was dismissed for non-attendance and the file was marked as closed. This dismissal led to the filing of the application dated 26th February 2024 the subject matter of this ruling.
28. The court has looked at the previous application dated 29th May 2023 which sought to set aside the order of dismissal of the appeal. The court notes that the grounds relied on for Counsel’s non-attendance on 20th September 2022 are an exact replica of the grounds adduced in the application at hand. The replication of the reasons given, in the court's view speaks to the veracity and truthfulness of the reasons given and the court is inclined to believe that without proof of the allegations made, the same cannot be taken to be true. The court thus considers the reasons given for non-attendance are more likely untrue. For this reason, the court is of the view that the applicant did not show “sufficient cause" for non-attendance in court on 17th October 2023.
29. Further, the court notes that the application set to be reinstated was dismissed on 17th October 2023. Counsel states that he attended court on the same date and was informed that the application had been dismissed yet he filed the application under consideration on 26th February 2024, over four months later. The above, conduct taken together with what has been set out from the court record, the court considers there is ample evidence that Counsel for the Applicant has been indolent in prosecuting the appeal herein and the applications filed.
30. Further, the fact that certified copies of typed proceedings of the lower court were available as early as 11th November 2021 yet no record of appeal was filed, shows that the claim that the applicant has been ready to prosecute the appeal is not made in good faith and the same is not true. The court finds the conduct of the Appellant concerning the matters herein is not deserving of the exercise of the court's discretion.
31. For the foregoing reasons, the court finds the application dated 26th February 2024 has no merit and the same is hereby dismissed with costs to the respondents.
Delivered, dated and signed at Kitui this 31st day of July, 2024.
The Ruling was read virtually in the presence of;
Musyoki - Court Assistant
Mandela for the Appellant/Applicant
No attendance for the Respondent