BRIEF FACTS
The Appellant/Applicant filed the instant application dated 29th April, 2024 seeking the following orders:
1. THAT the ruling and consequential orders issued on the 24th April, 2024 dismissing the appeal for want of prosecution be reviewed, varied and/or set aside.
2. THAT this honourable court be pleased to order that the Applicant’s appeal in this matter be reinstated.
3. THAT the costs of this application be provided for.
The Application was based on grounds set out and supported by the Affidavit of MAANZO DENNIS the Appellant/Applicant’s advocate herein sworn on 29th April, 2024.
It was stated that on 23rd March, 2024 the Applicant received a notice to show cause why the appeal should not be dismissed under Order 17 Rule 2 of the Civil Procedure Rules. He stated that he was commissioned to attend the matter and hold brief for the counsel on record. He further stated that on 24th April, 2024 from the KenyaLaw.org website, he got the cause list and the court virtual link where he prompted Microsoft awaiting to be logged in
That he waited in the lobby to be allowed in until past 9:30am when he realized that there was something wrong. He stated that he contacted the registry and was informed that the court already begun with the link provided on causelist.go.ke. He added that he was also informed that the appeal had been called out and dismissed for want of prosecution.
It was further stated that the dismissal was as a result of the inadvertent mistake on his part as the Applicant’s advocate due to the mix up of court links as provided in different platforms. He added that the Applicant has made substantial steps towards pursing the appeal therefore desirous to prosecute the appeal. He also stated that the Applicant had a valid case and its summary dismissal prior to it being heard on merit was a violation of natural justice. He stated that it would be in the interest of justice that the appeal be reinstated. He added that the Respondent will not suffer any prejudice that cannot be remedied by an award of costs.
In conclusion, he urged the court to allow the instant application as prayed.
Response
The Respondent through his advocate LAWRENCE MACHARIA KARANJA filed his Replying Affidavit sworn on 25th September, 2024. He averred that the application was an abuse of the court process. He further averred that the appeal had been filed on December 2022 and no action taken. He went on to aver that on 31st March, 2024, this court issued a notice to the Applicant to show cause why the appeal should not be dismissed.
It was his contention that despite service of the notice, the Applicant did not file any document and when the matter came up on 24th April, 2024, it was dismissed. He averred that once an appeal was filed, the same ought to be disposed expeditiously. In conclusion, he urged the court to dismiss the application with costs.
Submissions
The Appellant/Applicant filed his submissions dated 24th October, 2024 and identified one issue for determination, whether the court should exercise its discretion to review the Orders of 24th April 2024 and reinstate the Applicant’s Appeal. He relied on Order 12 Rule 7 and Order 45 Rule 1 of the Civil Procedure Rules and the case of Richard Ncharpi Leiyagu V Independent Electoral Boundaries Commission & 2 others [2013] eKLR. It was his submission that the non-attendance by the Applicant’s advocate was due to an inadvertent mistake by the advocate who tried accessing the court with the wrong link provided on the website. They submitted that the Court should not close the door of justice to the Applicant based on this.
They relied on the case of Belinda Murai & others v Amos Wainaina (1978) LLR 2782 (CALL) and HAS V SOS [2021] eKLR where the court found that the mistake by an advocate should not lead to the doors of justice being closed to the Applicant. He also submitted that the courts should dispense substantive justice in line with the constitutional imperative in Article 159 of the constitution that justice shall be administered without undue regard to procedural technicalities. They submitted that the Applicant has demonstrated that he has met the conditions set out in Order 45 Rule 1 of the Civil Procedure Rules.
The Respondent did not file his submissions to the application.
Analysis and Determination
This court has considered the application and supporting affidavit and submissions and is of the view that the sole issue for determination is whether the orders of 24th April, 2024 dismissing the suit for want of prosecution should be reviewed.
The jurisdiction of this court for review of orders is provided for under Order 45 Rule 1 (1) of the Civil Procedure Rules which provides as follows:
“1. Application for review of decree or order
(1) Any person considering himself aggrieved-
(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or
(b) by a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay.”
It is this court’s view that the basis of an application for review of an order is on the recovery of new and important matters or evidence which after due diligence, was not within the Applicant’s knowledge or could not be produced by him at the time when the order was made. Further an application for review may also be made on account of some mistake or error apparent on the face of the record, or for any other sufficient reason.
It was the Applicant’s case that the reason for non-attendance on 24th April, 2024 was not intentional as it was due to the confusion of the court’s virtual link as provided for in the cause list. The Applicant annexed copies of the cause list in support of the same which upon perusal, it is this court’s view that indeed there was some disparity on the link as provided. In view of the above, this court shall exercise its discretion and in the interest of justice allow the application. Consequently, I find that the instant application is with merit and is therefore allowed in the following terms:
a) The orders of this court dated 24th April, 2024 is hereby set aside.
b) The suit is hereby reinstated.
c) Each party to bear its own costs
It is so ordered
The Appellant/Applicant filed the instant application dated 29th April, 2024 seeking the following orders:
1. THAT the ruling and consequential orders issued on the 24th April, 2024 dismissing the appeal for want of prosecution be reviewed, varied and/or set aside.
2. THAT this honourable court be pleased to order that the Applicant’s appeal in this matter be reinstated.
3. THAT the costs of this application be provided for.
The Application was based on grounds set out and supported by the Affidavit of MAANZO DENNIS the Appellant/Applicant’s advocate herein sworn on 29th April, 2024.
It was stated that on 23rd March, 2024 the Applicant received a notice to show cause why the appeal should not be dismissed under Order 17 Rule 2 of the Civil Procedure Rules. He stated that he was commissioned to attend the matter and hold brief for the counsel on record. He further stated that on 24th April, 2024 from the KenyaLaw.org website, he got the cause list and the court virtual link where he prompted Microsoft awaiting to be logged in
That he waited in the lobby to be allowed in until past 9:30am when he realized that there was something wrong. He stated that he contacted the registry and was informed that the court already begun with the link provided on causelist.go.ke. He added that he was also informed that the appeal had been called out and dismissed for want of prosecution.
It was further stated that the dismissal was as a result of the inadvertent mistake on his part as the Applicant’s advocate due to the mix up of court links as provided in different platforms. He added that the Applicant has made substantial steps towards pursing the appeal therefore desirous to prosecute the appeal. He also stated that the Applicant had a valid case and its summary dismissal prior to it being heard on merit was a violation of natural justice. He stated that it would be in the interest of justice that the appeal be reinstated. He added that the Respondent will not suffer any prejudice that cannot be remedied by an award of costs.
In conclusion, he urged the court to allow the instant application as prayed.
Response
The Respondent through his advocate LAWRENCE MACHARIA KARANJA filed his Replying Affidavit sworn on 25th September, 2024. He averred that the application was an abuse of the court process. He further averred that the appeal had been filed on December 2022 and no action taken. He went on to aver that on 31st March, 2024, this court issued a notice to the Applicant to show cause why the appeal should not be dismissed.
It was his contention that despite service of the notice, the Applicant did not file any document and when the matter came up on 24th April, 2024, it was dismissed. He averred that once an appeal was filed, the same ought to be disposed expeditiously. In conclusion, he urged the court to dismiss the application with costs.
Submissions
The Appellant/Applicant filed his submissions dated 24th October, 2024 and identified one issue for determination, whether the court should exercise its discretion to review the Orders of 24th April 2024 and reinstate the Applicant’s Appeal. He relied on Order 12 Rule 7 and Order 45 Rule 1 of the Civil Procedure Rules and the case of Richard Ncharpi Leiyagu V Independent Electoral Boundaries Commission & 2 others [2013] eKLR. It was his submission that the non-attendance by the Applicant’s advocate was due to an inadvertent mistake by the advocate who tried accessing the court with the wrong link provided on the website. They submitted that the Court should not close the door of justice to the Applicant based on this.
They relied on the case of Belinda Murai & others v Amos Wainaina (1978) LLR 2782 (CALL) and HAS V SOS [2021] eKLR where the court found that the mistake by an advocate should not lead to the doors of justice being closed to the Applicant. He also submitted that the courts should dispense substantive justice in line with the constitutional imperative in Article 159 of the constitution that justice shall be administered without undue regard to procedural technicalities. They submitted that the Applicant has demonstrated that he has met the conditions set out in Order 45 Rule 1 of the Civil Procedure Rules.
The Respondent did not file his submissions to the application.
Analysis and Determination
This court has considered the application and supporting affidavit and submissions and is of the view that the sole issue for determination is whether the orders of 24th April, 2024 dismissing the suit for want of prosecution should be reviewed.
The jurisdiction of this court for review of orders is provided for under Order 45 Rule 1 (1) of the Civil Procedure Rules which provides as follows:
“1. Application for review of decree or order
(1) Any person considering himself aggrieved-
(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or
(b) by a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay.”
It is this court’s view that the basis of an application for review of an order is on the recovery of new and important matters or evidence which after due diligence, was not within the Applicant’s knowledge or could not be produced by him at the time when the order was made. Further an application for review may also be made on account of some mistake or error apparent on the face of the record, or for any other sufficient reason.
It was the Applicant’s case that the reason for non-attendance on 24th April, 2024 was not intentional as it was due to the confusion of the court’s virtual link as provided for in the cause list. The Applicant annexed copies of the cause list in support of the same which upon perusal, it is this court’s view that indeed there was some disparity on the link as provided. In view of the above, this court shall exercise its discretion and in the interest of justice allow the application. Consequently, I find that the instant application is with merit and is therefore allowed in the following terms:
a) The orders of this court dated 24th April, 2024 is hereby set aside.
b) The suit is hereby reinstated.
c) Each party to bear its own costs
It is so ordered