1. Vide a notice of motion dated 12th April 2024 brought under Article 50 of the Constitution, Sections 1A, 1B and 3A of the Civil Procedure Act, Order 24 Rule 7 and Order 51 Rule 1 of the Civil Procedure Rules, the plaintiff/applicant seeks that the orders made on 3rd October 2024 be set aside; that upon setting aside the impugned orders, the court be pleased to reinstate the suit and fix the matter for hearing of the plaintiff’s case.
2. The application is predicated on the grounds on its face and supported by the affidavit of Musa Kipkemboi Maiyo sworn on 12th April 2024. He deposes that the matter was set down for hearing on 18th September 2023 but it did not proceed as his advocate was said to be indisposed following an accident; that an adjournment was granted and another hearing date given for 3rd October 2023 with a condition that his advocate avails a medical report/record; that on the material date, his advocate did was attend court but sent another advocate to apply for an adjournment for the reason that his condition had worsened; that the court granted the adjournment but directed the advocate to file his medical report/ record within five failing which the suit would stand dismissed.
3. The applicant contends that his advocate did not comply with the orders of the court and the suit now stands dismissed. He avers that he is keen to prosecute the suit himself to finality and has taken all reasonable steps to ensure the matter proceeds; that the defendant will not be prejudiced if the orders sought are granted and that the application has been brought without unreasonable delay. He urges the court to allow the application in the interest of justice.
4. The application is not opposed.
5. I have considered the application, the grounds and the affidavit in support and I find the sole issue for determination to be whether the applicant has made up a case for being granted the orders sought.
6. Courts under Order 12 Rule 7 of the Civil Procedure Rules may where judgment has been entered or the suit has been dismissed on application, set aside or vary the judgment or order upon such terms as may be just.
7. On exercise of discretion by courts, the court of appeal in the case of Shah vs Mbogo [1967] EA 166 stated:-
“. . .this discretion to set aside an exparte judgment is intended to be exercised to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake or error but is not designed to assist the person who has deliberately sought whether by evasion or otherwise to abstract or delay the cause of justice.”
Also see the case of Patel v East Africa Cargo Handling Services Ltd (1975) E.A. 75 where the court held:
“There is no limits or restrictions on the judge’s discretion to set aside or vary an exparte judgment except that if he does vary the judgment, he does so on such terms as may be just. The main concern of the court is to do justice to the parties and the court will not impose conditions on itself to fetter the wide discretion given it by the rules.”
8. In the instant case, the court adjourned hearing of this suit three times on the instance of the plaintiff’s advocate’s health condition. Despite being asked to avail a medical report/ record on two occasions, the plaintiff’s advocate did not comply. A reading of paragraphs 4,5 6 and 7 of the applicant’s supporting affidavit makes the court doubt that the plaintiff’s advocate was unwell as stated by the advocate he sent to hold his brief.
9. In the aforesaid affidavit, the applicant avers that he attended court on the date the matter was set down for hearing and called his advocate several times but he did not pick his calls; that upon enquiring from the registry how the matter had proceeded, he was informed that an adjournment had been granted as his advocate was unwell; that he visited his advocate the following week in his office who assured him that he would attend court on the next hearing date (there is no indication that the applicant’s advocate was involved in an accident or that he was unwell). Despite the promise to attend court, his advocate did not attend court or comply with the order of the court.
10. From the explanation given by the applicant, the court finds the plaintiff/applicant’s version believable and notes the efforts he made to ensure continuity of his suit including making enquiries at the registry after his advocate’s absence, visiting his advocate in his office and filing a notice of intention to act in person which he duly served upon his advocate and advocate for the respondents.
11. In the case of Rupa Savings & Credit Cooperative Society V Violet Shidogo [2022] eKLR the court on conduct of counsel, stated;
“It is trite that mistakes of counsel should not be visited on his/her client. However, that as it may be to exercise discretion under this domain it is the duty of the aggrieved party to place before court prima facie evidence to tilt the scale of discretion squarely on this guiding principle.”.
12. The applicant has demonstrated that failure to attend court and comply with the court order was a mistake made by his advocate and not himself which is not indicative of the applicant’s attitude towards prosecuting the matter. The court has also considered the fact that hearing of the suit is yet to begin and no prejudice will be occasioned to the respondent that cannot be compensated by way of damages.
13. Consequently, I exercise my discretion and allow prayers 2 and 3 in the application with no orders on costs as the application was not defended.
14. Orders accordingly.
Dated, signed and delivered at Iten this 3rd day of June, 2024.
Ruling read electronically in the presence of;-
Musa Kipkemboi Maiyo - Applicant.
N/A for the respondents
Court Asst.: Christine/Alex