1. The issue raised through the application dated 5/6/2024 is whether the present suit should be reinstated and whether the orders of 18/4/2023 should therefore be set aside and the suit herein reinstated.
2. Order 12 Rule 7 of the Civil Procedure Rules gives the court the discretion to reinstate a suit which has been dismissed for non-attendance upon such terms as may be just.
3. The factors to take into consideration were discussed by the Court in Ivita vs. Kyumbu [1984] KLR 441 that held as follows:
“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.”
4. The plaintiff confirms that this suit was filed in 2019 but contends that its then advocates never updated the Company on the progress of the matter. It has been said previously that a cause belongs to the parties and not to an advocate. Therefore, even if the Company had instructed Counsel, it was incumbent upon it to make active follow up on the matter. The plaintiff has not provided a single form of evidence to show any such follow up which presupposes that the Company equally went into slumber after the suit was filed.
5. I find it inconceivable that a party would instruct counsel and for almost 4 years not be proactive to find out whether their instructions have been carried out by their counsel, for whose services they would presumably be paying for.
6. In any case, this application is brought over a year after the dismissal of the suit which is in my view, inordinate delay. Section 1A of the CPA mirrors the constitutional interdict in Article 159 on the need for expeditious disposal of disputes. Section 1A (3) makes it clear that the duty to give effect to the overriding objective of the CPA belongs not just to the court but to counsel and the parties. The applicant’s conduct and propensity in my view demonstrates lack of respect for the laid down procedures. Equally, the applicant has not demonstrated diligence in prosecuting this matter.
7. I am not convinced that reinstating this suit would serve the objectives under the CPA or under Article 159 of the Constitution. The plaintiff had its chances before the seat of justice and it is ostensibly clear that they are not deserving of a second bite at the cherry. As such, the application dated 5/6/2024 is dismissed with costs to the defendant and the file is marked as closed.
DATED, SIGNED AND DELIVERED IN NAIROBI
THIS 28TH DAY OF NOVEMBER, 2024.
F. MUGAMBI
JUDGE
2. Order 12 Rule 7 of the Civil Procedure Rules gives the court the discretion to reinstate a suit which has been dismissed for non-attendance upon such terms as may be just.
3. The factors to take into consideration were discussed by the Court in Ivita vs. Kyumbu [1984] KLR 441 that held as follows:
“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.”
4. The plaintiff confirms that this suit was filed in 2019 but contends that its then advocates never updated the Company on the progress of the matter. It has been said previously that a cause belongs to the parties and not to an advocate. Therefore, even if the Company had instructed Counsel, it was incumbent upon it to make active follow up on the matter. The plaintiff has not provided a single form of evidence to show any such follow up which presupposes that the Company equally went into slumber after the suit was filed.
5. I find it inconceivable that a party would instruct counsel and for almost 4 years not be proactive to find out whether their instructions have been carried out by their counsel, for whose services they would presumably be paying for.
6. In any case, this application is brought over a year after the dismissal of the suit which is in my view, inordinate delay. Section 1A of the CPA mirrors the constitutional interdict in Article 159 on the need for expeditious disposal of disputes. Section 1A (3) makes it clear that the duty to give effect to the overriding objective of the CPA belongs not just to the court but to counsel and the parties. The applicant’s conduct and propensity in my view demonstrates lack of respect for the laid down procedures. Equally, the applicant has not demonstrated diligence in prosecuting this matter.
7. I am not convinced that reinstating this suit would serve the objectives under the CPA or under Article 159 of the Constitution. The plaintiff had its chances before the seat of justice and it is ostensibly clear that they are not deserving of a second bite at the cherry. As such, the application dated 5/6/2024 is dismissed with costs to the defendant and the file is marked as closed.
DATED, SIGNED AND DELIVERED IN NAIROBI
THIS 28TH DAY OF NOVEMBER, 2024.
F. MUGAMBI
JUDGE