BRIEF FACTS
The Plaintiffs/Applicants filed the instant application dated 31st October, 2023 seeking the following orders:
1. THAT this Honourable Court be pleased to set aside or vary the court orders given on the 17th October, 2023 which dismissed the suit herein for want of prosecution and reinstate the same for hearing and determination.
2. THAT costs of this application be in the cause.
The Application was based on grounds set out and supported by the Affidavit of MUTAI K. OWEN advocate for the Applicants. He stated that the original claim was dismissed with costs for want of prosecution paving way for the Applicant’s counterclaim to be heard and determined. That directions for hearing were to be taken on 25th September, 2023 but counsel that held his brief mis-diarized the same to 26th September, 2023. He stated that he was thus not present in court on 25th September, 2023.
That unknown to him, the matter had been slated for a further mention on 17th October, 2023 for directions. He added that he came to be aware that the said date was communicated to the firms via email on 13th October, 2023. He stated that their office email address had technical difficulties in retrieving the said mail as it had run out of storage. He added that the same explained their non-attendance. That the other parties were not notified of the mention date thus prejudicing their right to be heard and that the 1st Defendant now acts in person hence he ought to be served with the mention notice in person. He added that the 3rd to 11th Defendants were equally not notified of the mention date. He stated that the application was brought without inordinate delay thus tenable for the same to be reinstated for hearing. He urged the court that in the interest of justice it would be proper for the parties to be granted an opportunity to ventilate their case.
Response
The 5th Defendant filed his Replying Affidavit dated 6th December, 2023 where he averred that the application was incompetent, an abuse of the court process as the orders sought were not capable of being granted. He averred that the main suit had been instituted by the Plaintiff against the 1st and 2nd Defendants in 2012 which was dismissed for want of prosecution. He further stated that what was pending was the counter claim where together with the 3rd, 6th and 11th Defendants, they were introduced as they were not parties to the main suit.
He averred that they filed their defence and counterclaim against the Plaintiff and thus the proceedings herein are ambiguous. That the Defendant in the main case are not keen on prosecuting their counterclaim. He added that what ought to be reinstated by the Applicants was their counterclaim and not the suit thus the orders sought are incapable of being granted. He averred that the Applicants have the option of instituting a fresh case as compared the instant suit that is ambiguous in terms of there being a counter claim to a counterclaim. In conclusion, he urged the court that they be awarded thrown away costs of Kshs. 50,000 should the court be inclined to allow reinstatement of the suit.
Submissions
Counsel for the Plaintiffs/Applicants filed their submissions dated 20th May, 2024 where they gave a background of the case and identified one issue for determination. Whether the instant application meets the legal threshold for an application to reinstated a suit. They relied on Order 12 Rule 7, Order 51 Rule 15 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act and submitted that the power to set aside any ex parte order is discretionary but ought to be exercised judiciously. They also cited the case of Mbogo & Another V Shah EALR 1908 and D.T Dobie & Company (Kenya) Limited V Joseph Mbaria Muchina & Another Civil Appeal 37 of 1978 [1980] eKLR. Counsel reiterated the contents in the supporting affidavit sworn on 31st October, 2023 and submitted that the same constituted an excusable explanation as to non-attendance by counsel as well as the Applicants and witnesses. They submitted that the Applicants ought not to be denied an opportunity to have their case heard and determined.
They relied on Article 159(2d) of the Constitution and the overriding objectives as set out in Section 1A, 1B and 3A of the Civil Procedure Act which implore courts to often unless for very good cause serve substantive and not procedural technicalities. Counsel relied on the Court of Appeal case of Abdirahman Abdi alias Abdirahman Mohamed Abdi V Safi Petroleum Products Ltd & 6 Others and Githere V Kimungu [1976-1985] E.A 101. They urged the court to exercise its discretionary powers and grant the Applicants a chance to prosecute their case on merit.
They submitted that the Respondents had not explained their absence from court and neither did they addressed the issue of substantive justice. Counsel also submitted that the suit was ready for hearing and that the Respondents would not suffer any prejudice if the instant application was allowed. In conclusion, they submitted that as regards the 3rd to 11th Respondents plea for an award of thrown away costs of Kshs. 50,000 the same was outrageous. They added that neither their counsel nor themselves were present in court on the mention date as they were never notified. They added that they have not justified the inconvenience to be cured by the award of thrown away costs.
Analysis and Determination
This court has considered the application and supporting affidavit and submissions and is of the view that the main issue for determination is whether the orders of 17th October, 2023 dismissing the suit for non-attendance 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 cause for non-attendance was not intentional since it was due to mis-diarisation of the date as well as a technical hitch with their official email address. The Applicant went further to avail evidence in support of the same. It is this court’s view that the Defendants argument is rather ambiguous since it is not disputed that the counter-claim was the suit to which the Applicant sought reinstated.
This court shall exercise its discretion and in the interest of justice allow the Applicant’s application.
Consequently, I find that the instant application is with merit and is therefore allowed in the terms that the orders of this court dated 17th October, 2023 is hereby set aside and the suit is hereby reinstated and each party to bear its own costs. It is so ordered.
RULING DATED, SIGNED AND DELIVERED ELECTRONICALLY ON THIS 15TH DAY OF OCTOBER 2024.
The Plaintiffs/Applicants filed the instant application dated 31st October, 2023 seeking the following orders:
1. THAT this Honourable Court be pleased to set aside or vary the court orders given on the 17th October, 2023 which dismissed the suit herein for want of prosecution and reinstate the same for hearing and determination.
2. THAT costs of this application be in the cause.
The Application was based on grounds set out and supported by the Affidavit of MUTAI K. OWEN advocate for the Applicants. He stated that the original claim was dismissed with costs for want of prosecution paving way for the Applicant’s counterclaim to be heard and determined. That directions for hearing were to be taken on 25th September, 2023 but counsel that held his brief mis-diarized the same to 26th September, 2023. He stated that he was thus not present in court on 25th September, 2023.
That unknown to him, the matter had been slated for a further mention on 17th October, 2023 for directions. He added that he came to be aware that the said date was communicated to the firms via email on 13th October, 2023. He stated that their office email address had technical difficulties in retrieving the said mail as it had run out of storage. He added that the same explained their non-attendance. That the other parties were not notified of the mention date thus prejudicing their right to be heard and that the 1st Defendant now acts in person hence he ought to be served with the mention notice in person. He added that the 3rd to 11th Defendants were equally not notified of the mention date. He stated that the application was brought without inordinate delay thus tenable for the same to be reinstated for hearing. He urged the court that in the interest of justice it would be proper for the parties to be granted an opportunity to ventilate their case.
Response
The 5th Defendant filed his Replying Affidavit dated 6th December, 2023 where he averred that the application was incompetent, an abuse of the court process as the orders sought were not capable of being granted. He averred that the main suit had been instituted by the Plaintiff against the 1st and 2nd Defendants in 2012 which was dismissed for want of prosecution. He further stated that what was pending was the counter claim where together with the 3rd, 6th and 11th Defendants, they were introduced as they were not parties to the main suit.
He averred that they filed their defence and counterclaim against the Plaintiff and thus the proceedings herein are ambiguous. That the Defendant in the main case are not keen on prosecuting their counterclaim. He added that what ought to be reinstated by the Applicants was their counterclaim and not the suit thus the orders sought are incapable of being granted. He averred that the Applicants have the option of instituting a fresh case as compared the instant suit that is ambiguous in terms of there being a counter claim to a counterclaim. In conclusion, he urged the court that they be awarded thrown away costs of Kshs. 50,000 should the court be inclined to allow reinstatement of the suit.
Submissions
Counsel for the Plaintiffs/Applicants filed their submissions dated 20th May, 2024 where they gave a background of the case and identified one issue for determination. Whether the instant application meets the legal threshold for an application to reinstated a suit. They relied on Order 12 Rule 7, Order 51 Rule 15 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act and submitted that the power to set aside any ex parte order is discretionary but ought to be exercised judiciously. They also cited the case of Mbogo & Another V Shah EALR 1908 and D.T Dobie & Company (Kenya) Limited V Joseph Mbaria Muchina & Another Civil Appeal 37 of 1978 [1980] eKLR. Counsel reiterated the contents in the supporting affidavit sworn on 31st October, 2023 and submitted that the same constituted an excusable explanation as to non-attendance by counsel as well as the Applicants and witnesses. They submitted that the Applicants ought not to be denied an opportunity to have their case heard and determined.
They relied on Article 159(2d) of the Constitution and the overriding objectives as set out in Section 1A, 1B and 3A of the Civil Procedure Act which implore courts to often unless for very good cause serve substantive and not procedural technicalities. Counsel relied on the Court of Appeal case of Abdirahman Abdi alias Abdirahman Mohamed Abdi V Safi Petroleum Products Ltd & 6 Others and Githere V Kimungu [1976-1985] E.A 101. They urged the court to exercise its discretionary powers and grant the Applicants a chance to prosecute their case on merit.
They submitted that the Respondents had not explained their absence from court and neither did they addressed the issue of substantive justice. Counsel also submitted that the suit was ready for hearing and that the Respondents would not suffer any prejudice if the instant application was allowed. In conclusion, they submitted that as regards the 3rd to 11th Respondents plea for an award of thrown away costs of Kshs. 50,000 the same was outrageous. They added that neither their counsel nor themselves were present in court on the mention date as they were never notified. They added that they have not justified the inconvenience to be cured by the award of thrown away costs.
Analysis and Determination
This court has considered the application and supporting affidavit and submissions and is of the view that the main issue for determination is whether the orders of 17th October, 2023 dismissing the suit for non-attendance 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 cause for non-attendance was not intentional since it was due to mis-diarisation of the date as well as a technical hitch with their official email address. The Applicant went further to avail evidence in support of the same. It is this court’s view that the Defendants argument is rather ambiguous since it is not disputed that the counter-claim was the suit to which the Applicant sought reinstated.
This court shall exercise its discretion and in the interest of justice allow the Applicant’s application.
Consequently, I find that the instant application is with merit and is therefore allowed in the terms that the orders of this court dated 17th October, 2023 is hereby set aside and the suit is hereby reinstated and each party to bear its own costs. It is so ordered.
RULING DATED, SIGNED AND DELIVERED ELECTRONICALLY ON THIS 15TH DAY OF OCTOBER 2024.