1. The plaintiff/applicant filed a Notice of Motion application dated 7th November, 2023 pursuant to the provisions of Sections 1A, 1B & 3A of the Civil Procedure Act, Cap 21 Laws of Kenya, and Order 12 Rule 7 & Order 51 Rules 1 & 15 of the Civil Procedure Rules, 2010 seeking the following orders –
i) Spent;
ii) That the orders of this Honourable Court issued on 28th September, 2023 dismissing this suit be set aside and the suit be reinstated for hearing on merit; and
iii) That the costs of this application be in the cause.
2. The application has been brought on the grounds on the face of the Motion and is supported by affidavits sworn on the same day by Sammy Otieno Amukasa, a Senior Assistant Manager Investment & Asset with the plaintiff, Caroline Kagoya, an Advocate of the High Court of Kenya and learned Counsel for the plaintiff, and Edwin Wangwe Waudo, an Advocate of the High Court of Kenya and learned Counsel for the plaintiff. In opposition thereto, the 5th defendant/respondent filed a replying affidavit sworn on 23rd January, 2024 by Firdosh Ebrahim Jamal, the 5th defendant herein and Grounds of Opposition dated 24th January, 2024 raising the following grounds –
i) That the application is not bona fide as it is contrary to the provisions of Article 159(2)(b) of the Constitution of Kenya and Sections 1A, 1B & 3A of the Civil Procedure Act, Chapter 21 of the Laws of Kenya in that this application is meant to perpetuate further delay in this matter that has in the past been dismissed and reinstated and that had, prior to the matter being dismissed on 28th September, 2023, been going on for over 20 years;
ii) That the application offends the equitable maxim which provides that equity aids the vigilant and not the indolent. The instant application and the affidavits annexed thereto do not provide any justifiable reason why the plaintiff was not present at the time and place appointed by this Honourable Court in the presence of the parties’ Advocates for hearing of the matter;
iii) That the application as well as the plaintiff’s conduct throughout this suit is contrary to the overriding objective which ensures litigants obtain justice expeditiously;
iv) That the plaintiff/applicant has not on a balance of probabilities shown that it has an arguable case with any reasonable prospect of success but intends to subject the 5th defendant/respondent to the anxiety of defending a suit which it has failed to prosecute for over 20 years despite being given every opportunity to do so; and
v) That for the reasons stated above, it is fair and just that the plaintiff/applicant’s application be dismissed with costs to the 5th defendant.
3. The application herein was canvassed by way of written submissions. The plaintiff’s submissions were filed on 23rd February, 2024 by the law firm of Migos-Ogamba & Waudo Advocates, whereas the 5th defendant’s submissions were filed by the law firm of Bowry & Co. Advocates on 29th February, 2024.
4. Mr. Waudo, learned Counsel for the plaintiff relied on the decisions in Kuria v Kemeli (Environment and Land Case Civil Suit No. 56 of 2017) [2022] KEELC 3648 (KLR) (19 May 2022) (Ruling) and submitted that the plaintiff has explained the reasons that prevented it from attending Court on time when this matter was coming up for hearing on 28th September, 2023 at 2:00 p.m. Thus, demonstrating sufficient cause that hindered them from attending Court on the aforesaid date. He relied on the decisions in Esther Namulinda & another v Magoola Benedikito & 2 Others, HCB at MBALE, 2011 and Shabir Din v Ram Parkash Anand 22 [1955] EACA 48(CA-K) and stated that the mistakes of Counsel should not be visited upon the litigant. He argued that if the application herein is not allowed, the plaintiff will suffer prejudice as this suit is of great public interest due to the colossal amount of public funds said to have been corruptly acquired by the defendants.
5. Mr. Pravin Bowry (SC), learned Counsel for the 5th defendant cited the provisions of Article 159(2)(d) of the Constitution of Kenya and submitted that this matter cannot be kept alive in perpetuity. He indicated that the plaintiff filed this suit on 19th August, 2003, thus a period of over 20 years has elapsed. He relied on the case of Hunker Trading Company Limited v Elf Oil Kenya Limited [2010] eKLR and urged this Court to take into consideration the fact that the plaintiff has not only never been interested in prosecuting this matter, but has also continuously bent and subverted the intent of the oxygen principles. Senior Counsel cited the provisions of Order 12 Rule 7 of the Civil Procedure Rules, 2010 and the case of Shah v Mbogo [1967] EA 116 and stated that the plaintiff had not demonstrated any excusable mistake or error that would warrant this Court to exercise its discretion in its favour.
6. He further stated that the plaintiff had not offered any plausible explanation as to why both its witnesses and its Advocate on record were not in Court on the date of the hearing, and at the time stipulated by the Court. He relied on the case of Reuben Nzuve Mwangangi v Mukene Musau & Another [2022] eKLR and argued that the fact that the plaintiff’s Counsel had other matters in the morning does not excuse his absence in Court. Further, given the plaintiff’s conduct since inception of this matter, it was evident that the plaintiff had acted negligently, and had not been diligent in prosecuting its case, which has remained inactive for years only feigning interest in the matter after the 5th defendant filed an application seeking to dismiss the suit for want of prosecution. Counsel contended that the plaintiff cannot be said to have demonstrated sufficient cause to warrant this Court to exercise its discretion in its favour.
ANALYSIS AND DETERMINATION.
7. I have considered the application filed herein, the grounds on the face of it and the affidavits filed in support thereof. I have also considered the replying affidavit and the grounds of opposition filed by the 5th defendant, as well as the written submissions by Counsel for the parties. The issue that arises for determination is whether the plaintiff’s suit should be reinstated for hearing.
8. Mr. Sammy Otieno Amukasa in his affidavit in support of the instant application deposed that he was appointed by the plaintiff to represent it as a witness in this matter by virtue of the office that he is holding. Consequently, he prepared a witness statement with the plaintiff's Advocate on record, which statement was subsequently filed on 17th April, 2023.
9. He averred that on 28th September, 2023 at around 2.00 p.m., he received a phone call from the plaintiff‘s Advocate on record, who indicated that he wondered where he was as he was supposed to appear in Court that afternoon to give evidence in support of the plaintiff‘s case. He informed him that he was not aware since he had not been informed of the same. That the said Advocate urged him to rush to Milimani Law Courts immediately.
10. He further averred that he also received a call from the plaintiff’s Legal Officer Ms. Janet Boit, who confirmed that this matter was to be heard on the same day and she asked him to proceed to Court since his presence as a witness was required. Mr. Otieno deposed that he immediately left for Milimani Law Courts but it took him a while to trace the Court room.
11. He stated that he eventually met the plaintiff’s Advocates and that they sought and got directions to the relevant Court from the High Court Commercial Registry. That they then rushed to the courtroom, but on arrival, they were informed by the Court Clerk that the Court had just dealt with the matter and had dismissed it for non-attendance.
12. Mr. Otieno further deposed that the plaintiff‘s non-attendance and/or failure to attend Court on time on 28th September, 2023 was not deliberate but was inadvertent and due to human error and a breakdown in communication in the plaintiff’s Corporation which is highly regretted.
13. He expressed the view that any delay caused and/or inconvenience suffered by the defendants in the event that the orders sought are granted can be reasonably compensated by way of costs.
14. Ms. Caroline Kagoya in her affidavit in support of the instant application deposed that on 28th September, 2023 at around 2.00 p.m., she received a call through the office line from a representative of the firm of Bowry & Co. Advocates via their office line, informing her that this matter was coming up for hearing at 2.00 p.m., and the Honourable Judge was already waiting in Court.
15. That she responded by stating that she would communicate the same to the Advocate handling this matter, who would go to Court immediately. That thereafter, she informed Mr. Edwin Waudo of the same, and he immediately left the office for Milimani Law Courts. She averred that she then made several calls to the office of Bowry & Co. Advocates with a view of informing them that Counsel was on his way to Court to attend to the matter, but her calls were not answered.
16. Mr. Edwin Wangwe Waudo in his affidavit in support of the instant application deposed that on the morning of 28th September, 2023 , he was unable to log into this Court virtually as he was appearing before Justice Onesmus Makau in ELRC No. 29 of 2021, and soon thereafter before Justice Prof. Nixon Sifuna in HCACE No. E028 of 2021. That later in the day at around 2.00 p.m., the defendant’s Advocates on record called his office and spoke to an Associate by the name Caroline Kagoya informing her that the hearing of this suit was to commence at 2.00 p.m.
17. He averred that the said Associate immediately informed him and he called the plaintiff’s in-house Counsel Janet Boit and Gilana Ochake as he was proceeding to Court, to request them to instruct the plaintiff's witness to proceed to Court but he was unable to reach any one of them. He further averred that he was able to retrieve the contacts of the said witness from the office file and he called him and informed him that he was required in Court to give evidence in support of the plaintiff's case.
18. Counsel stated that he informed the said witness that he wrote to the plaintiff’s Chief Executive Officer on 13th June, 2023 informing him of the said hearing date, but the said witness indicated that he had not been informed of the same.That he called Janet Boit again and was finally able to reach her and insisted to her on the need to direct the aforesaid witness to immediately proceed to Court.
19. He contended that when he arrived in Court, it took him sometime to trace the plaintiff’s witness and the Court room but he finally got directions from the Court Registry and they rushed to court, but by the time they go there, they were informed by the Court Clerk that the Court had just dealt with the matter and dismissed it for non-attendance.
20. Mr. Waudo expressed remorse for the inability to attend the Court session on time and for the said inadvertence and oversight on their part. He averred that the plaintiff is keen to have this matter heard and determined on its merits. Further, that the plaintiff is ready and willing to abide by any conditions that the Court may impose in regard to costs in respect of any delay caused and/or inconvenience suffered by the defendants, in the event the instant application is allowed.
21. In his replying affidavit, the 5th defendant averred that a period of 20 years has elapsed since this suit was filed. He further averred that the plaintiff has never taken any steps to set this matter down for hearing. It was stated by the 5th defendant that since the year 2014, the plaintiff had failed to take any action to prosecute this suit and sometime in 2021, he filed an application seeking to have this suit dismissed for want of prosecution.
22. He further stated that even after the said application was dismissed, the plaintiff still failed to attend Court which resulted to the Court issuing it with Notice to Show Cause why this suit should not be dismissed for want of prosecution on 27th September, 2022. That the said Notice to Show Cause was heard and the plaintiff was granted the last opportunity to prosecute this suit.
23. The 5th defendant stated that on 25th May, 2023, this suit was set down for hearing on 28th September, 2023 at 2.00 p.m. in open Court in the presence of Mr. Waudo for the plaintiff and Ms. Mambori holding brief for Mr. Bowry (SC) for the 5th defendant, but on that date the plaintiff failed to attend Court at the appointed time and only came after the suit had already been dismissed.
24. He stated that on 28th September, 2023 he attended Court together with his Advocates Mr. Pravin Bowry (SC) and Ms. Christine Kariuki who made a call to the plaintiff’s Advocates from her line inquiring why they were not present in Court. The 5th defendant urged this Court to uphold the integrity of the legal process and dismiss the instant application in line with the principles of Article 159(2) of the Constitution that encourage fair and expeditious resolutions of matters.
Whether the plaintiff’s suit should be reinstated for hearing.
25. This Court’s jurisdiction to set aside a judgment that had been entered on account of non-attendance by a party to a suit is derived from the provisions of Order 12 Rule 7 of the Civil Procedure Rules, 2010 which states that -
“Where under this Order judgment has been entered or the suit has been dismissed, the court, on application, may set aside or vary the judgment or order upon such terms as may be just.”
26. It is trite law that the jurisdiction of the Court to review and set aside its decisions is wide and unfettered. The East Africa Court of Appeal addressed this issue in the case of Shah v Mbogo and another (supra) and held that -
“This discretion (to set aside ex parte proceedings or decision) is intended so to be exercised to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake or error, but is not designed to assist a person who has deliberately sought, whether by evasion or otherwise, to obstruct or delay the course of justice.” (emphasis added)
27. In determining an application such as the instant one, Courts have to establish whether an applicant has demonstrated sufficient cause to warrant the Court to exercise its discretion in the applicant’s favour. “Sufficient Cause” was defined by the Court in Wachira Karani v Bildad Wachira [2016] eKLR as follows –
“Sufficient cause is thus the cause for which the defendant could not be blamed for his absence. Sufficient cause is a question of fact and the court has to exercise its discretion in the varied and special circumstances in the case at hand. There cannot be a straight-jacket formula of universal application. Thus, the defendant must demonstrate that he was prevented from attending court by a sufficient cause…”
28. The suit was filed sometime in the year 2003 but it has never proceeded to hearing. The 5th defendant contended that the plaintiff is not interested in prosecuting this matter noting that this suit has come up for dismissal for want of prosecution on two different occasions, and in both instances the plaintiff was accorded an opportunity to prosecute this suit but failed to do so. From the record, it is evident that this matter came up for mention on 25th May, 2023 for the Court to give directions on whether or not this suit should be dismissed for want of prosecution. On the said date, the Court noted that the explanation given by Counsel for the plaintiff seemed plausible and proceeded to set this suit down for hearing on 28th September, 2023 in the presence of Mr. Waudo for the plaintiff and Ms. Wambui who was holding brief for Mr. Pravin Bowry (SC) for the 5th defendant.
29. It was stated by the 5th defendant’s Counsel that on 25th May, 2023 the Court stated that the hearing of this suit would proceed in open Court at 2.00 p.m. But from the record, I note that there was no time indication given, all that the Court indicated was that the hearing would be in open Court. It is not disputed that neither the plaintiff nor its Advocates on record attended Court on 28th September, 2023 when this suit was coming up for hearing. As a result, Counsel for the 5th defendant made an application for the suit to be dismissed for non-attendance of the plaintiff, since the said date was taken by consent and in the presence of the plaintiff’s Advocates on record. Consequently, this suit was dismissed for non-attendance of the plaintiff under Order 12 Rule 3 of the Civil Procedure Rules, 2010, with costs to the 5th defendant.
30. On perusal of the affidavits filed in support of the instant application, it is only the plaintiff’s witness who has explained why he was not in Court on 28th September, 2023. Counsel for the plaintiff on the other hand other than stating that he was before other Courts in the morning of 28th September, 2023, has not explained whether or not he made arrangements for another Advocate to attend Court on his behalf to seek for an adjournment or to have the matter placed aside. From the affidavits of Ms. Caroline Kagoya and Mr. Edwin Wangwe Waudo, it appears that Mr. Waudo had forgotten that this matter was coming up for hearing on 28th September, 2023. This is because Ms. Caroline Kagoya averred that she received a call from an Advocate from the law firm representing the 5th defendant at around 2.00 p.m., who informed her that the matter was coming for hearing at 2.00 p.m., and the Court was waiting for them. That she immediately informed the Advocate who was handling this case, being Mr. Waudo.
31. On his part, Mr. Waudo stated that upon being informed by Ms. Kagoya that the case was coming up for hearing at 2.00 p.m, he started reaching out to the plaintiff’s Legal Officer and impressed upon her to request the plaintiff’s witness to come to Court to give evidence on behalf of the plaintiff. Mr. Waudo also called the plaintiff’s witness and requested him to come to Court. The said witness is said to have proceeded to Milimani Law Courts. Mr. Waudo averred that he too came to the Court premises but on reaching Court, it took him sometime to trace the plaintiff’s witness and the Court room, and he was only able to trace the Court room with the assistance of the Court’s personnel.
32. He stated that by the time they got to Court, they found that the Court had already dealt with the case and dismissed the plaintiff’s suit for non-attendance. It is evident from the affidavits filed in support of the instant application that Mr. Waudo has not offered any explanation as to why he was not in Court on 28th September, 2023, being the date that the case was coming up for hearing. Further, the plaintiff has also not offered any explanation as to why it did not instruct its witness to be present in Court on the said date, despite the fact that the plaintiff was notified by their Advocates on record vide a letter dated 13th June, 2023, that this matter was slated for hearing on 28th September, 2023.
33. The plaintiff has urged this Court to allow the instant application since failure to attend Court on 28th September, 2023 was not deliberate but was on account of an inadvertent error and mistake of Counsel which should not be visited upon it. As was correctly submitted by Counsel for the 5th defendant, the plaintiff has not spelt out the mistake of Counsel that occasioned him not to attend Court on 28th September, 2023. Further, the plaintiff’s Advocates in their affidavits in support of the instant application have neither stated nor admitted to any mistake that led the plaintiff not to attend Court on 28th September, 2023. To the contrary, they have demonstrated that the plaintiff was duly notified of the said hearing date vide a letter dated 13th June, 2023 and that they were expecting the plaintiff to avail a witness who would have testified on its behalf on that particular day.
34. In as much as this Court appreciates the fact that mistakes of Advocates, even if they are blunders should not be visited on their clients when the situation can be remedied by an award of costs, it is not in every case that a mistake committed by an Advocate would be a ground for setting aside orders of the Court.
35. In the case of Savings and Loans Limited v Susan Wanjiru Muritu Nairobi (Milimani) HCCS No.397 of 2002 Kimaru, J expressed himself as follows -
“Whereas it would constitute a valid excuse for the Defendant to claim that she had been let down by her former Advocates failure to attend Court on the date the application was fixed for hearing, it is trite that a Case belongs to a litigant and not to her Advocate. A litigant has a duty to pursue the prosecution of his or her Case. The Court cannot set aside dismissal of a suit on the sole ground of a mistake by Counsel of the litigant on account of such Advocate's failure to attend Court. It is the duty of the litigant to constantly check with her advocate the progress of her case. In the present Case, it is apparent that if the Defendant had been a diligent litigant, she would have been aware of the dismissal of her previous application for want of prosecution soon after the said dismissal. For the Defendant to be prompted to action by the Plaintiff's determination to execute the decree issued in its favour, is an indictment of the Defendant. She had been indolent and taking into account her past conduct in the prosecution of the application to set aside the default judgment that was dismissed by the Court, it would be a travesty of justice for the Court to exercise its discretion in favor of such a litigant.”
36. From the above excerpt, a litigant seeking to rely on the mistake of an Advocate as an excuse must show tangible steps taken by him in following up his matter. In this case, the plaintiff has not demonstrated the reasons why it did not notify and/or instruct its witness to attend Court on 28th September, 2023 for him to give evidence on its behalf, despite the fact that it was notified of the said date by its Advocates on record vide a letter dated 13th June, 2023.
37. As to whether the instant application has been filed timeously, the suit was dismissed on 28th September, 2023. The plaintiff and its Advocate on record acknowledge the fact that they were aware that the suit was dismissed on the same day the Court gave an order dismissing it. The instant application was however filed on 8th November, 2023, which is approximately forty (40) days later. The plaintiff has not offered any explanation as to why the instant application was filed late. In the premise, this Court finds that there was inordinate delay in filing the application herein. Ultimately, I hold that the plaintiff has not demonstrated sufficient cause to warrant this Court to exercise its discretion in its favour.
38. In the end, I find that the application herein is devoid of merits. It is hereby dismissed with costs to the 5th defendant.
It is so ordered.
DATED, SIGNED and DELIVERED at NAIROBI on this 7th day of June, 2024. Ruling delivered through Microsoft Teams Online Platform.
NJOKI MWANGI
JUDGE
In the presence of:
Ms Kariuki for the 5th defendant
Ms Jebichi h/b for Mr Waudo for the plaintiff
Ms B. Wokabi Court Assistant.