Joseph Cherop, the Plaintiff herein has come to this court against Ngari Muchoki Mahihu praying for orders that the Honorable Court be pleased to issue an order to reinstate this suit for hearing and determination on merit and that the costs of this application be provided for.
The grounds of his application are that he is the owner LR No. Plot No. 1412 Oljorai Phase Il and is in possession of the same and filed this suit against the respondent way back on the 23rd May, 2016, obtained interim orders of injunction and was fully compliant in terms of Order 11 of the Civil Procedure rules 2010 and ready to proceed with the hearing of the suit. He has been to the offices of his previous advocates M/S Lawrence Mwangi & Mwangi Advocates on numerous occasions where for a long time though he has been informed that the advocate is unwell, he has also been informed that the matter is proceeding well though upon noting irregular behavior from the respondent in increasing their attempts to enter his land parcel not only went to the office of his advocate but also perused the court file. On perusal of the court file the applicant noted that the court on its own motion had served his advocates with a notice to show cause for dismissal scheduled for the 9th March, 2020 when unfortunately the suit was dismissed for want of prosecution.
On confronting his previous advocates with the information the advocates admitted that unfortunately they had not been able to diligently prosecute the file on account of long illness and Covid -19 disruptions. The applicant was not aware that the advocate was not prosecuting the matter having given him full instructions on the same and was not informed of the date for the notice to show cause on dismissal.
The applicant retrieved his file from the said advocates and instructed new advocates and being interested to prosecute the matter is forced to file this application seeking intervention of the Honourable Court for reinstatement of the matter for hearing on merit as the dismissal for want of prosecution has not offered a lasting solution to the dispute.
The applicant pleads for indulgence and consideration as the dismissal of the suit for want of prosecution occurred under facts and circumstances beyond his control, his application is faithful and true and not meant to prejudice or inconvenience any party. The application is premised by an affidavit of Joseph Cherop that reiterates the grounds of the application
He states that he also undertook a search on the land parcel and noted that the respondent has undertaken illegal transactions on the land parcel yet he is in possession and further that a restriction has been placed on the land parcel by the assets recovery agency on allegations of fraud. He pleads for indulgence and consideration of the Honorable Court as the dismissal of the suit for want of prosecution occurred under facts and circumstances beyond his control and his application is faithful and true and not meant to prejudice or inconvenience any party. He prays that the suit hearing be reinstated for hearing and determination on merit to enable him prosecute the same as that is the only way that he shall be able to find a lasting solution in this matter.
The applicant submits that the application has merit and should be allowed. The gist of the application is that the applicant is the legal owner of the suit LR Plot Nor 1412 Oljorai phase Il. The applicant is in possession of the land and filed this suit against the respondent way back in the 2016 on account of interferences on the land parcel by the respondent, The applicant avers that he obtained interim orders of injunction in the suit and was fully compliant in terms of Order 11 of the Civil Procedure Rules 2010 and ready to proceed hearing of the matter.
The applicant adds that he had advocates acting for him in the matter and he went to the said advocates office on numerous occasions and for a long time where he was severally informed that the advocate was unwell and that the matter was proceeding on well. Later he noted irregular behavior from the respondent increasingly making attempts. to enter the land parcel and he not only went to the advocate's office but he also perused the court file.
On perusal of the court file he noted unfortunately that his suit had been scheduled for a notice to show cause on 9th March, 2020 when the same was unfortunately was dismissed for want of prosecution. The Applicant avers that he was not aware of that date as he had not been notified- of the same by his advocate.
The applicant also adds that he confronted his advocates on record who admitted that they had not been able to diligently prosecute the file on account of long illness of the advocate and also-on account of Covid 19 disruptions. The applicant has been constrained to change advocates and also to file an application for reinstatement of the suit for hearing and determination on merit and he-prays for indulgence and consideration.
The applicant adds in his further affidavit that the application is competent and has merit. He adds that he obtained interim orders and did not go to sleep but in fact fully complied with provisions of Order Il of the Civil Procedure Rules 2010 in readiness for a hearing of the matter. He adds that unfortunately his advocate fell ill and could not prosecute the matter and the said advocate is ill to date a fact not contradicted by the respondent. The applicant adds that the suit land parcel is within Nakuru at Oljorai and that the respondent admitted jurisdiction in their defence, The applicant also adds that the suit land has not been sold since he is still in possession but there are entries in the green card on the land parcel that indicate fraudulent attempts by respondent to dispose of the land parcel. He adds that there is a caution on the land parcel registered himself and by anti-corruption authorities making it necessary for this court to re-open this matter for hearing and determination on merit. The applicant clearly did not deliberately fail to prosecute his matter. It was not in his interest to fail to attend court and he is fully compliant and ready to proceed with this matter. The respondent will not be prejudiced if the matter is set down for hearing.
The respondent has filed replying affidavit opposing the application wherein he states that the application is incompetent and an abuse of the court process. The respondent also avers that the applicant obtained interim orders and then went to a deep slumber failing to prosecute the suit. The respondent adds that the application has been dismissed for a long time and that the applicant is indolent. The respondent also adds that the court has no jurisdiction in the matter and that there have been changes in the matter since he has already sold the suit land to other individuals.
The applicant submits that he should not suffer mistakes of his advocates if at all the applicant had advocates to represent him in this matter who unfortunately fell ill. and being a layman was totally dependent on his advocate for advice and action in prosecuting the suit. The respondent has also indicated any positive action that he took towards prosecuting this matter. The applicant humbly prays for consideration and indulgence and that the application be allowed.
The respondent submits that the only issue that is before this court is whether the application is merited. According to the respondent, the issue of reinstatement of suits is not novel to this court as this court and other superior courts have severally ruled on this. He refers to the case of Mobile Kitale Service Station vs. Mobil Oil Kenya Limited & another [2004) eKLR (Warsame J) where it was held:
"l must say that the Courts are under a lot of pressure from backlogs and increased litigation, therefore it is in the interest of Justice that litigation must be conducted expeditiously and efficiently so that injustice caused by delay would be a thing of the past. Justice would be better served if we dispose matters expeditiously. Therefore, I have no doubt the delay in the expeditious prosecution of this suit Is due to the laxity, indifference and/ or negligence of the plaintiff. That negligence, indifference and/or laxity should not and cannot be placed at the doorsteps of the defendant. The consequences must be placed on their shoulders. "
In James Mwangi Gathara & another vs. Officer Commanding Station Loitoktok & 2 others [20181 eKLR (Nyakundi J), the court said:
"Before I conclude this matter, I need to bring to the attention of the plaintiff the manner in which he is pursuing his rights. In my view the proceedings in this claim seems to be focusing on interlocutory applications without addressing the main dispute which brought the parties to court in the first instance. It is time the plaintiff decides categorically whether he has a claim to be heard on the merits or continuous slumbering only for rise up when he has been stripped of certain rights during the adjudication processes. In my assessment and based on the history of this case the plaintiff is guilty of laches. I think I have said enough on this point. "
The respondent submits that the Plaintiff/Applicant filed the matter herein on 23rd March 2016 together with an application. The Applicant obtained interim orders on 26th May 2016. After obtaining the said interim orders the Applicant never moved the court for any action. He never moved the court to prosecute his application or the suit herein. The applicant went into a deep slumber until the year 2020 when the court on its own motion fixed the matter for notice to show case. The said notice was served upon the Applicant who failed to attend court to explain to Court the reason as to why the matter here was not to be dismissed for failure to prosecute the same. The applicant has not given any reason whatsoever as to why he failed to prosecute his matter. He has only blamed his advocate for the same. Further after the matter was dismissed on 9th March 2020 it is only until 2024 when the applicant moved the court for reinstatement of the suit.
It is worth noting that this matter was filed over nine years ago and for all that time, no step has been taken to prosecute the matter herein. It is a classic example where a party moves to court to obtain interim orders and goes into a deep slumber leaving the matter unattended.
The applicant has only blamed his advocate for not following up on the matter however it is a fact that cases belong to litigant and not the advocate. The applicant never visited the court registry to peruse his file to find out about the progress of the case. It was the Applicant who filed this case and as such he cannot claim that he was following it up with his advocate.
As it was held by Kimaru J in Savings and Loans Limited v Susan Wanjiru Muritu Nairobi HCCC 397 of 2002 that the case belongs to a litigant and that the Appellants should have followed up with his advocate. He has not attached even a single correspondence or communication showing that he followed up on the matter. The Applicant has also stated that his advocate was ill for some time and that is the reason as to why his case was dismissed. Again, we reiterate our submissions above that the case belongs to the applicant and as such if his advocate was not able to discharge his mandate, he had an option to either change an advocate or act in person. The act of the Applicant changing an advocate too late when he should have done so at the earliest instance cannot save his feeble claim to reinstate the suit herein.
It is a known principle that justice favors the swift and not the indolent. The Applicant herein has been indolent for the last 9 years, nothing has been done to prosecute the matter herein. He has only blamed his advocate and the defendant who did not bring the suit herein. This court should be stern and not entertain indolent parties herein who are causing backlog in the courts and delaying the disposal of justice.
Further the reinstatement of the suit is untenable as there has been a change of circumstance and events including changing of ownership of land, the creation of a new court, Naivasha Environment and Land Court with territorial jurisdiction other than this court and as such reinstating this suit is untenable. On the issue of costs the respondent submits that this is a proper case to warrant dismissal with costs to the Respondents as costs follow events.
I have considered the application and do find that the suit herein was filed on the 23rd May 2016 and an order of injunction issued on the 21st June 2017 to the plaintiff. The suit was basically dormant from the 21st June 2017 to 9th March 2020 approximately two years when this court on its own motion issued a notice to show cause why the suit could not be dismissed. The plaintiff did not come to court to show cause hence the suit was dismissed on 9th March 2020. The Plaintiff came to court on 24th May 2024, more than 4 years to set aside the orders made on 9th March 2020 on the grounds that the suit was dismissed due to the mistake of the advocate. This court finds that the applicant has not given sufficient reasons why his advocate did not attend court on the 9th March 2020. The applicant’s advocate who is still in practice has not deposed any affidavit to state that he was unwell. The applicant has not explained sufficiently why he took 4 Years to file the application to reinstate the suit. This court finds that the plaintiff with his advocate went into slumber-land and are creating non- existent grounds to hoodwink the court into granting the orders for reinstatement of the suit. The grounds relied upon by the applicant should not be entertained. The application is without merit and the same is dismissed with costs.
The grounds of his application are that he is the owner LR No. Plot No. 1412 Oljorai Phase Il and is in possession of the same and filed this suit against the respondent way back on the 23rd May, 2016, obtained interim orders of injunction and was fully compliant in terms of Order 11 of the Civil Procedure rules 2010 and ready to proceed with the hearing of the suit. He has been to the offices of his previous advocates M/S Lawrence Mwangi & Mwangi Advocates on numerous occasions where for a long time though he has been informed that the advocate is unwell, he has also been informed that the matter is proceeding well though upon noting irregular behavior from the respondent in increasing their attempts to enter his land parcel not only went to the office of his advocate but also perused the court file. On perusal of the court file the applicant noted that the court on its own motion had served his advocates with a notice to show cause for dismissal scheduled for the 9th March, 2020 when unfortunately the suit was dismissed for want of prosecution.
On confronting his previous advocates with the information the advocates admitted that unfortunately they had not been able to diligently prosecute the file on account of long illness and Covid -19 disruptions. The applicant was not aware that the advocate was not prosecuting the matter having given him full instructions on the same and was not informed of the date for the notice to show cause on dismissal.
The applicant retrieved his file from the said advocates and instructed new advocates and being interested to prosecute the matter is forced to file this application seeking intervention of the Honourable Court for reinstatement of the matter for hearing on merit as the dismissal for want of prosecution has not offered a lasting solution to the dispute.
The applicant pleads for indulgence and consideration as the dismissal of the suit for want of prosecution occurred under facts and circumstances beyond his control, his application is faithful and true and not meant to prejudice or inconvenience any party. The application is premised by an affidavit of Joseph Cherop that reiterates the grounds of the application
He states that he also undertook a search on the land parcel and noted that the respondent has undertaken illegal transactions on the land parcel yet he is in possession and further that a restriction has been placed on the land parcel by the assets recovery agency on allegations of fraud. He pleads for indulgence and consideration of the Honorable Court as the dismissal of the suit for want of prosecution occurred under facts and circumstances beyond his control and his application is faithful and true and not meant to prejudice or inconvenience any party. He prays that the suit hearing be reinstated for hearing and determination on merit to enable him prosecute the same as that is the only way that he shall be able to find a lasting solution in this matter.
The applicant submits that the application has merit and should be allowed. The gist of the application is that the applicant is the legal owner of the suit LR Plot Nor 1412 Oljorai phase Il. The applicant is in possession of the land and filed this suit against the respondent way back in the 2016 on account of interferences on the land parcel by the respondent, The applicant avers that he obtained interim orders of injunction in the suit and was fully compliant in terms of Order 11 of the Civil Procedure Rules 2010 and ready to proceed hearing of the matter.
The applicant adds that he had advocates acting for him in the matter and he went to the said advocates office on numerous occasions and for a long time where he was severally informed that the advocate was unwell and that the matter was proceeding on well. Later he noted irregular behavior from the respondent increasingly making attempts. to enter the land parcel and he not only went to the advocate's office but he also perused the court file.
On perusal of the court file he noted unfortunately that his suit had been scheduled for a notice to show cause on 9th March, 2020 when the same was unfortunately was dismissed for want of prosecution. The Applicant avers that he was not aware of that date as he had not been notified- of the same by his advocate.
The applicant also adds that he confronted his advocates on record who admitted that they had not been able to diligently prosecute the file on account of long illness of the advocate and also-on account of Covid 19 disruptions. The applicant has been constrained to change advocates and also to file an application for reinstatement of the suit for hearing and determination on merit and he-prays for indulgence and consideration.
The applicant adds in his further affidavit that the application is competent and has merit. He adds that he obtained interim orders and did not go to sleep but in fact fully complied with provisions of Order Il of the Civil Procedure Rules 2010 in readiness for a hearing of the matter. He adds that unfortunately his advocate fell ill and could not prosecute the matter and the said advocate is ill to date a fact not contradicted by the respondent. The applicant adds that the suit land parcel is within Nakuru at Oljorai and that the respondent admitted jurisdiction in their defence, The applicant also adds that the suit land has not been sold since he is still in possession but there are entries in the green card on the land parcel that indicate fraudulent attempts by respondent to dispose of the land parcel. He adds that there is a caution on the land parcel registered himself and by anti-corruption authorities making it necessary for this court to re-open this matter for hearing and determination on merit. The applicant clearly did not deliberately fail to prosecute his matter. It was not in his interest to fail to attend court and he is fully compliant and ready to proceed with this matter. The respondent will not be prejudiced if the matter is set down for hearing.
The respondent has filed replying affidavit opposing the application wherein he states that the application is incompetent and an abuse of the court process. The respondent also avers that the applicant obtained interim orders and then went to a deep slumber failing to prosecute the suit. The respondent adds that the application has been dismissed for a long time and that the applicant is indolent. The respondent also adds that the court has no jurisdiction in the matter and that there have been changes in the matter since he has already sold the suit land to other individuals.
The applicant submits that he should not suffer mistakes of his advocates if at all the applicant had advocates to represent him in this matter who unfortunately fell ill. and being a layman was totally dependent on his advocate for advice and action in prosecuting the suit. The respondent has also indicated any positive action that he took towards prosecuting this matter. The applicant humbly prays for consideration and indulgence and that the application be allowed.
The respondent submits that the only issue that is before this court is whether the application is merited. According to the respondent, the issue of reinstatement of suits is not novel to this court as this court and other superior courts have severally ruled on this. He refers to the case of Mobile Kitale Service Station vs. Mobil Oil Kenya Limited & another [2004) eKLR (Warsame J) where it was held:
"l must say that the Courts are under a lot of pressure from backlogs and increased litigation, therefore it is in the interest of Justice that litigation must be conducted expeditiously and efficiently so that injustice caused by delay would be a thing of the past. Justice would be better served if we dispose matters expeditiously. Therefore, I have no doubt the delay in the expeditious prosecution of this suit Is due to the laxity, indifference and/ or negligence of the plaintiff. That negligence, indifference and/or laxity should not and cannot be placed at the doorsteps of the defendant. The consequences must be placed on their shoulders. "
In James Mwangi Gathara & another vs. Officer Commanding Station Loitoktok & 2 others [20181 eKLR (Nyakundi J), the court said:
"Before I conclude this matter, I need to bring to the attention of the plaintiff the manner in which he is pursuing his rights. In my view the proceedings in this claim seems to be focusing on interlocutory applications without addressing the main dispute which brought the parties to court in the first instance. It is time the plaintiff decides categorically whether he has a claim to be heard on the merits or continuous slumbering only for rise up when he has been stripped of certain rights during the adjudication processes. In my assessment and based on the history of this case the plaintiff is guilty of laches. I think I have said enough on this point. "
The respondent submits that the Plaintiff/Applicant filed the matter herein on 23rd March 2016 together with an application. The Applicant obtained interim orders on 26th May 2016. After obtaining the said interim orders the Applicant never moved the court for any action. He never moved the court to prosecute his application or the suit herein. The applicant went into a deep slumber until the year 2020 when the court on its own motion fixed the matter for notice to show case. The said notice was served upon the Applicant who failed to attend court to explain to Court the reason as to why the matter here was not to be dismissed for failure to prosecute the same. The applicant has not given any reason whatsoever as to why he failed to prosecute his matter. He has only blamed his advocate for the same. Further after the matter was dismissed on 9th March 2020 it is only until 2024 when the applicant moved the court for reinstatement of the suit.
It is worth noting that this matter was filed over nine years ago and for all that time, no step has been taken to prosecute the matter herein. It is a classic example where a party moves to court to obtain interim orders and goes into a deep slumber leaving the matter unattended.
The applicant has only blamed his advocate for not following up on the matter however it is a fact that cases belong to litigant and not the advocate. The applicant never visited the court registry to peruse his file to find out about the progress of the case. It was the Applicant who filed this case and as such he cannot claim that he was following it up with his advocate.
As it was held by Kimaru J in Savings and Loans Limited v Susan Wanjiru Muritu Nairobi HCCC 397 of 2002 that the case belongs to a litigant and that the Appellants should have followed up with his advocate. He has not attached even a single correspondence or communication showing that he followed up on the matter. The Applicant has also stated that his advocate was ill for some time and that is the reason as to why his case was dismissed. Again, we reiterate our submissions above that the case belongs to the applicant and as such if his advocate was not able to discharge his mandate, he had an option to either change an advocate or act in person. The act of the Applicant changing an advocate too late when he should have done so at the earliest instance cannot save his feeble claim to reinstate the suit herein.
It is a known principle that justice favors the swift and not the indolent. The Applicant herein has been indolent for the last 9 years, nothing has been done to prosecute the matter herein. He has only blamed his advocate and the defendant who did not bring the suit herein. This court should be stern and not entertain indolent parties herein who are causing backlog in the courts and delaying the disposal of justice.
Further the reinstatement of the suit is untenable as there has been a change of circumstance and events including changing of ownership of land, the creation of a new court, Naivasha Environment and Land Court with territorial jurisdiction other than this court and as such reinstating this suit is untenable. On the issue of costs the respondent submits that this is a proper case to warrant dismissal with costs to the Respondents as costs follow events.
I have considered the application and do find that the suit herein was filed on the 23rd May 2016 and an order of injunction issued on the 21st June 2017 to the plaintiff. The suit was basically dormant from the 21st June 2017 to 9th March 2020 approximately two years when this court on its own motion issued a notice to show cause why the suit could not be dismissed. The plaintiff did not come to court to show cause hence the suit was dismissed on 9th March 2020. The Plaintiff came to court on 24th May 2024, more than 4 years to set aside the orders made on 9th March 2020 on the grounds that the suit was dismissed due to the mistake of the advocate. This court finds that the applicant has not given sufficient reasons why his advocate did not attend court on the 9th March 2020. The applicant’s advocate who is still in practice has not deposed any affidavit to state that he was unwell. The applicant has not explained sufficiently why he took 4 Years to file the application to reinstate the suit. This court finds that the plaintiff with his advocate went into slumber-land and are creating non- existent grounds to hoodwink the court into granting the orders for reinstatement of the suit. The grounds relied upon by the applicant should not be entertained. The application is without merit and the same is dismissed with costs.