I. Preliminaries
1. The Judgement of this Honourable Court pertains to an appeal preferred vide a Memorandum of Appeal dated 12th June 2024 and the 135 pages Record of Appeal dated 2nd December, 2024 instituted by the PASINI INVESTMENT LIMITED, the Appellant herein. The Appeal was against the County Government of Kwale, the Respondent herein.
2. Being aggrieved by the ruling of the lower court in Kwale Magistrates Court ELC No 1 of 2022 delivered on 15th May 2024, the Appellant moved this Honourable Court. In a nutshell, the said trial court proceeded to set aside its earlier orders of dismissing the suit for non-attendance and thus reinstated it. It further directed that the suit to be heard and determined on its own merit.
II. The Appellant’s appeal
3. The Appeal by the Appellant is contained in the three (3) grounds of appeal founded in the filed Memorandum of Appeal as follows:-
a) That the Learned Trial Magistrate erred in law in exercising its discretion wrongly and injudiciously
b) That the Learned Magistrate erred in fact and in law in reinstating the suit despite being not convinced by the reasons canvassed by the Respondent
c) The Learned Trial Magistrate erred in law by applying Section 1A [1] together with Sections 18 [1][a] of the Civil Procedure Act, Cap. 21 contrary to the provision of Article 159 of the Constitution of Kenya, 2010.
4. Subsequently, the Appellant urged this Honourable Court to allow the appeal in the following terms:-
a) This Honourable Court do set aside the ruling dated 15th May 2024.
b) The order dated 13th July 2022 dismissing the suit be reinstated.
c) Costs of this appeal be provided for.
III. Submissions
5. On 29th January 2025 while all the Counsels namely Ms. Oweya and Mr Amakobe Advocates for the Respondent and the Appellant respectively were present in Court, they were directed to have the appeal disposed of by way of written submissions. Pursuant to that, it is only the Appellant who obliged and a ruling date was reserved for 1st April 2025. However due to unavoidable circumstances it was eventually delivered on 23rd June, 2025.
IV. Appellant’s submissions
6. On behalf of the Appellant, the Law firm of Messrs. M. Oweya & Co Advocates filed their written submissions dated 4th March 2024. M/s. Oweya Advocate commenced her submission by providing a brief background of the matter. The Learned Counsel crafted two (2) issues for consideration by this Honourable Court in the course of its determination. These were:
a) Whether or not the appeal is merited
b) Who is liable to pay costs
7. On whether the appeal had merit. According to the Learned Counsel, the matter was initiated at the Environment & Land Court in Mombasa before being transferred to the Kwale law Courts. It took six [6] years before the matter was fixed for hearing for reasons that the Respondent was not interested in prosecuting its case. Later on, a request was made to have the matter transferred to the Magistrate’s Court in the year 2022 but still the Respondent failed to proceed with fixing a hearing date. Consequently, a hearing date was fixed for 13th July, 2022 but still on the material date the Respondents failed to appear before the Court a state of affairs that led to the dismissal of the suit for non-appearance.
8. Arising from this Ruling, the Respondent moved Court vide an application dated 23rd September, 2022 seeking for it to review, vary set aside or vacate its orders it issued on 13th July, 2022 dismissing the entire suit for non attendance of the Respondent. On 15th May, 2024 the Trial Court delivered the impugned Ruling which is the subject of this appeal.
9. The Appellant referred to the issue of the courts discretion to issue orders and made reference to the holding in the case of:- “George Kimotho Hewe & Another - Versus - Esther Kilonzo Mathuku HC Misc. Application No E72 of 2021 and in the case of:- “John Gaita Versus Seaforth Shipping Kenya Limited [2015] eKLR” where the court held that the court ought to exercise its discretion on principle and not on private opinion.
10. The court was urged to properly use its discretion in granting the orders sought before it. The court was referred to the contents under Paragraph 12 of the lower court ruling where the issue of network challenges alluded to by the Respondent was discussed. The awarded costs of a sum of Kenya Shillings Ten Thousand (Kshs 10,000/-) was also challenged as there was no other fate fit for the Respondent other than dismissal of the application for reinstatement. This Honourable Court was urged to allow the appeal with costs.
V. Analysis and Determination
11. I have read the Memorandum of Appeal, the Record of Appeal, written submission filed by the Appellant and the court record generally and identify the following three (3) issues that emerge for its determination:
VI. Issues for determination
a) Whether or not the Respondent satisfied the grounds for grant of an order of reinstatement of suit in its application in the trial court.
b) Whether or not the trial court erred in allowing the application
c) What order to make on costs.
ISSUE No. a). Whether or not the Respondent satisfied the grounds for grant of an order of reinstatement of suit in its application in the trial court.
12. From the record, this is a first appeal. The principle upon which a first appellate court exercises jurisdiction is well settled. The Court of Appeal outlined the principle in the case of “Susan Munyi – Versus - Keshar Shiani (2013) eKLR” as follows:
“As a first Appellate court our duty of course is to approach the whole of the evidence on record from a fresh perspective and with an open mind. We are to analyze, evaluate, assess, weigh, interrogate and scrutinize all of the evidence and arrive at our own independent conclusions.”
13. Additionally, in the case of:- “Gitobu Imanyara & 2 Others – Versus - Attorney General [2016] eKLR” the Court held that:
“this being a first appeal, it is trite law that this court is not bound necessarily to accept the findings of fact by the court below and that an appeal to this court from a trial by the High Court is by way of a retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect.”
14. The above principle was similarly outlined in the case of:- “Abok James Odera t/a A. J Odera & Associates – Versus - John Patrick Machira t/a Machira & Co Advocates [2013] eKLR” as follows:-
“This being a first appeal, we are reminded of our primary role as a first appellate court, namely, to re-evaluate, re-assess and re-analyse the extracts on the record and then determine whether the conclusions reached by the learned trial judge are to stand or not and give reasons either way.”
15. Prior to proceeding further, it is imperative that the Honourable Court extrapolates on the brief facts of the case. From the records, the Respondent herein who was the Plaintiff before the lower court instituted the suit vide a Plaint dated 26th May 2017. Initially, the suit was first instituted in the ELC Court in Mombasa but later on upon institution of the ELC court in Kwale, the file was transferred to Kwale. A request was made for it to be heard and determined by the magistrate’s court due to jurisdiction. The Respondent averred that it was the duly registered owner to all that parcel of land known as KWALE/DIANI COMPLEX/33 measuring approximately Three Decimal Two (3.2) Heactraes located in Diani location Msambweni Sub – County of the County of Kwale. It averred that the suit land which was reserved for public purposes came into its possession as Grant from the Government of Kenya on 24th November, 1998. It had leased it to the Ministry of Tourism for a term of 33 years commencing from 16th July, 1999.
16. However, upon conducting its investigation it came to its attention that the property had been encroached by the Appellant and surrounded by various plots. The Appellant without the knowledge and consent of the Respondent illegally and irregularly curved out the suit property creating other parcels for instance in this case parcel number Kwale Diani Complex/872
17. Arising from these, the Respondent sought for the Court to revoke the afore stated title allegedly acquired illegally and unlawfully and held by the Appellant. Further, extinguishing any rights that the Appellant held over the suit property. Additionally, the Respondent sought for a permanent injunction restraining any activities by the Appellant on the property and further for a declaration that Kwale/Diani Complex/872 is encroaching on Kwale/Diani Complex/33 and as a consequence order for rectification of the parcel records at County of Kwale land registry.
18. Juxtapose, on its part the Appellant filed a Statement of Defence dated and filed on 14th December, 2017. It denied all the averments raised from the Plaint. It challenged the capacity of the Respondent to conduct investigation on its own actions and activities as it was the one that had caused the sub – division of the suit land in dispute and which was sold to the Appellant at sum of Kenya Shillings Three Hundred Thousand (Kshs. 300, 000/=) and issued with a Certificate of title deed on 22nd, July, 2009. According to the Appellant, they were the rightful and absolute registered owners to all that property known as Kwale Diani Complex/872 arising from a sub – division of the parcel Kwale Diani Complex/33 and whereby the title deed had never been challenged.
19. Furthermore, the Appellant argued that from the filed pleadings the Respondent never pleaded any particulars of illegality, unlawfulness nor fraud on how the Appellant acquired the suit land as required by law nor was the matter reported at any police station for investigation to commence whatsoever. In the long run, the Appellant urged the Court to dismiss the suit with damages and costs awarded to them.
20. From the proceedings on record, the file came up severally for mention for directions before the magistrate’s court but it is noted that the Respondent was never present. The dates include 18th January 2022, 21st February 2022 and 9th March 2022 before Hon. Omido J. M. [SPM] for hearing. The matter was finally dismissed on 13th July 2022 after the Respondent failed to turn up for a hearing. The dismissal was thus for non-attendance. All the parties were present save for the 3rd party. The matter was set for hearing on 13th July 2022 which date an application for dismissal of the suit was made by Ms. Oweya Advocate for the Appellant. Thus, the suit was dismissed for non-attendance with costs to the Appellant.
21. Thereafter, the Respondent moved Court through filing of an application dated 23rd September 2022 seeking for the review and/or setting aside of the orders dismissing the suit and for reinstatement of the suit. The Respondent sought to set aside the orders dismissing the suit and having the same reinstated. In the affidavit supporting the application sworn by Shibonje Sydney Amakobe Advocate, it was averred that when the matter came up for hearing, the Counsel was unable to address court as a result of network challenges. According to the Counsel, by the time the suit was called for hearing, he was on his feet before the court in Mariakani before Hon Ngii. Thus, the non-attendance was an excusable mistake that should not be seen as a deliberate attempt to obstruct the administration of justice. Further that the Respondent has an inalienable right to a fair hearing and trial which behoves upon the court to reinstate the suit.
22. The application was vigorously opposed by the Appellant vide a replying affidavit sworn by Giovanni Quadrelli. That when the matter came up for hearing Counsel for the Respondent never made any appearance before court. That the matter was called out severally on the online platform but no response was received from the Respondent. That even after the matter proceeded the Respondent did not call the Appellant’s Counsel or the court to inform them of the network challenges but only did so by filing the application after 3 months.
23. It was averred that the application was an afterthought and had been brought before court in bad faith. That the Appellant would be prejudiced if the orders sought were allowed as the suit property legally belongs to it.
24. Upon hearing the application, on 15th May, 2024 the Honourable Court delivered its Ruling in favour of the Respondent who was the Applicant then. It is this Ruling which is the subject of the appeal before this Honourable Court. That is adequate on facts.
25. Primarily, I reiterate that this appeal is against a ruling on an application for setting aside an order for dismissal of a suit for non-attendance and for reinstatement of the suit. Hence the evidence on record for this court to reconsider and analyze is the evidence in respect of the application for reinstatement. It includes the Application dated 23rd September 2022, the Supporting Affidavit thereto, Replying Affidavit dated 18th November 2022 and the further affidavit sworn on 15th March 2023. The court will further consider the submissions on record by the Appellant dated 4th September 2023 and submissions by the respondent dated 31st August 2023.
26. On whether the Respondent satisfied the threshold for grant of orders to set aside and review of the orders for dismissal of the suit and reinstatement of the same. The relevant law governing setting aside Judgment or dismissal is Order 12 Rule 7 of the Civil Procedure Rules, 2010. It provides as follows:
“Where under this order judgment has been entered or a suit dismissed, the court, on application, may set aside or vary the judgment or order upon such terms as may be just”
27. The decision of whether to or not to allow an application for setting aside Judgment or an order for dismissal of a suit due to non-attendance of a Plaintiff is within the wide discretion of the court. This discretion has to be exercised judiciously, as was stated the case of “Shah – Versus - Mbogo (1979) EA 116 quoted with approval in the case of “John Mukuha Mburu – Versus - Charles Mwenga Mburu [2019] eKLR”, where that court held thus:-
“......this discretion is intended to be exercised to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake or error, but is not designated to assist a person who has deliberately sought, whether by evasion or otherwise to obstruct or delay the cause of justice.”
28. Undoubtedly, it is a matter that requires a delicate balancing and accommodating the substantive interest of all parties herein. Based on the chronology of events outlined above clearly indicates the indolence exhibited by the Respondent in prosecuting the suit. However, I am looking at the reasons advanced by the Respondent as to why the matter did not proceed as was scheduled. For the Court to exercise its discretion in favour of the Applicant, they have to satisfy that there is sufficient cause or reason to warrant it to be put into use in setting aside the order of dismissal and subsequently reinstate the suit. “Sufficient Cause” was defined by the Supreme Court of India in the case of “Parimal – Versus – Veena” which was cited with approval in the case of “Wachira Karani – Versus - Bildad Wachira [2016] eKLR”. In the case, the said Supreme Court stated that: -
“sufficient cause" is an expression which has been used in large number of statutes. The meaning of the word "sufficient" is "adequate" or "enough", in as much as may be necessary to answer the purpose intended. Therefore, the word "sufficient" embraces no more than that which provides a platitude which when the act done suffices to accomplish the purpose intended in the facts and circumstances existing in a case and duly examined from the view point of a reasonable standard of a curious man. In this context, "sufficient cause" means that party had not acted in a negligent manner or there was want of bona fide on its part in view of the facts and circumstances of a case or the party cannot be alleged to have been "not acting diligently" or "remaining inactive." However, the facts and circumstances of each case must afford sufficient ground to enable the court concerned to exercise discretion for the reason that whenever the court exercises discretion, it has to be exercised judiciously"
The court in the above case added that while deciding whether there is a sufficient cause or not, the court must bear in mind the object of doing substantial justice to all the parties concerned and that the technicalities of the law should not prevent the court from doing substantial justice and doing away with the illegality perpetuated on the basis of the judgment impugned before it. The test to be applied is whether the defendant honestly and sincerely intended to remain present when the suit was called for hearing. 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.”
29. Over the recent past the judiciary in its social transformation - STAJ - agenda, in a bid to ensure efficient and timely dispensation of matters has adopted technology in the course of running its duties. The same obviously comes along with various challenges that include the network challenges as was in the instant case.
30. The Respondent did annex evidence to support the fact that its Counsel on record was before other courts at the same time the matter was proceeding for hearing. I have noted with great profound the intensive observation made by the Learned Trial Court under Paragraphs 9, 10 and 12 of the Ruling to wit:
“Paragraph 9 – In my view therefore, I find no cause and/or good enough reasons why the Plaintiff’s Advocate was not present in Court when the said matter was called out……..”
Paragraph 10 – I have noted his sentiments as captured under grounds 5 and considering I am not seized with the then trial court teams account, that is an allegations I can not verify and/or prove……..”
Paragraph 12 - Having had the sight of the proceedings of the day, I note the suit was dismissed at 10.20am. That in my view, was sufficient time for Counsel to have sought necessary intervention if he was engaged and have to hold his brief as he dealt with other issues as highlighted under his 5th ground…….”
31. It is rather difficult to prove the challenges in the network as alleged but looking at the contested issues in the suit which are on ownership of the suit property herein, the court opines that a just finding is to be made and which includes allowing all the parties involved to ventilate their case. Challenges in network while appearing virtually before court is in my view sufficient cause.
32. The court in the case of “Mwangi S. Kimenyi –Versus - Attorney General & Another [2014] eKLR”, outlined the test to be considered in a case for reinstatement of suit where it stated as follows: -
“The decision whether a suit should be reinstated for trial is a matter of justice and it depends on the facts of the case. See the case of Ivita Vs Kyumbu [1984] KLR 441, Chesoni J. (as he then was) that: - 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.
The Defendant must however satisfy the court that he 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.”
33. It is well established that the issue of reinstatement of a suit is a discretion of the court. Black’s Law Dictionary (Tenth Edition) defines judicial discretion as:
“The exercise of judgment by a judge or court based on what is fair under the circumstances and guided by the rules and principles of law; a court’s power to act or not act when a litigant is not entitled to demand the act as a matter of right.”
34. Mativo J in the case of:- “Republic – Versus - Public Procurement Administrative Review Board & another; Mer Security & Communications System Ltd/Megason Electronics & Control 1978 (JV) & another (Interested Parties); Exparte Magal Security Systems Ltd/Firefox Kenya Limited (JV) [2019] eKLR cited with approval the classic definition of `discretion' by the King’s Bench in Rookey’s Case [77 ER 209; (1597) 5 Co.Rep.99] which stated as follows: -
“Discretion is a science, not to act arbitrarily according to men’s will and private affection: so the discretion which is exercised here, is to be governed by rules of law and equity, which are to oppose, but each, in its turn, to be subservient to the other. This discretion, in some cases follows the law implicitly, in others or allays the rigour of it, but in no case does it contradict or overturn the grounds or principles thereof, as has been sometimes ignorantly imputed to this Court. That is a discretionary power, which neither this nor any other Court, not even the highest, acting in a judicial capacity is by the constitution entrusted with.”
35. The provisions of Article 159 (1) & (2) of the Constitution of Kenya, 2010; Sections 1, 1A, 3 & 3A of the Civil Procedure Act, Cap. 21 and Sections 3 and 13 of the Environment & Land Court Act, No. 19 of 2011; Sections 101 of the Land Registration Act, No. 3 of 2012 and Section 150 of the Land Act, No. 6 of 2012 gives the court inherent power to make such orders as may be necessary for the ends of justice to be met. This is what denotes to discretion of the court. What the court is to consider while exercising discretion was emphasized in the case of “Patriotic Guards Limited – Versus - James Kipchirchir Sambu [2018] eKLR” where it was stated as follows:
“It is settled law that whenever a court is called upon to exercise its discretion, it must do so judiciously and not on caprice, whim, likes or dislikes. Judicious because the discretion to be exercised is judicial power derived from the law and as opposed to a judge’s private affection or will. Being so, it must be exercised upon certain legal principles and according to the circumstances of each case and the paramount need by court to do real and substantial justice to the parties in a suit.”
36. Looking at the circumstances of the instant case, land being overly sensitive and emotive in Kenya, I see no prejudice that is to be suffered by the Appellant in the event that the suit is reinstated and allowed to proceed on merit before the trial Court. I discern that on this front, I hold that the appeal fails. In saying so, I am guided by the holding in the case of:- “Karanja (Suing as the Representative of the Estate of David Karanja Ng’ang’a) – Versus - Kiboinet t/a Sweetland Consultant Limited & 2 others (Environment & Land Case 45B of 2021) [2024] KEELC 3654 (KLR) (30 April 2024) (Ruling) where it was stated:-
“Every person has a right to be heard as envisaged in the constitution of Kenya 2010 and the court cannot take the same away unless under extremely stringent circumstances. The right to be heard is one of the two cardinal rules established under the principle of natural justice and it is generally expressed as audi alteram partem (that a party should not be condemned unheard). However, this does not mean that a party must be heard in all circumstances or despite the circumstances. It only means that a party ought to be given the opportunity to present their case, and then it is up to that party to either utilise the opportunity or not. Most importantly, a court cannot force a party to actually utilise the opportunity afforded to them to present their case, what is important is that it can be shown that the Party was availed the opportunity to be heard”
ISSUE No. c). Who will bear the costs of the Appeal.
37. It is now well established that the issue of Costs is at the discretion of the Court. Costs meant the award that is granted to a party at the conclusion of the legal action, and proceedings in any litigation. The Proviso of Section 27 (1) of the Civil Procedure Rules Cap. 21 Laws of Kenya holds that Costs follow the events. By the event, it means outcome or result of any legal action. This principle encourages responsible litigation and motivates parties to pursue valid claims. See the cases of “Harun Mutwiri – Versus - Nairobi City County Government [2018] eKLR and “Kenya Union of Commercial, Food and Allied Workers – Versus - Bidco Africa Limited & Another [2015] eKLR, the court reaffirmed that the successful party is typically entitled to costs, unless there are compelling reasons for the court to decide otherwise.
38. I have well stated in previous precedence and most especially in the case of:- “Sagalla Lodge Limited – Versus - Samwuel Mazera Mwamunga & another (Suing as the Executors of Eliud Timothy Mwamunga – Deceased) [2022] eKLR”, that:
“58. The Black Law Dictionary defines “Cost” to means, “the expenses of litigation, prosecution or other legal transaction especially those allowed in favour of one party against the other”.
The provisions of Section 27 (1) of the Civil Procedure Act, Cap. 21 holds that Costs follow events. The issue of Costs is the discretion of Courts. From this provision of the law, it means the whole circumstances and the results of the case where a party has won the case. The events in this case is that the Notice of Motion application dated 7th December, 2021 by the Plaintiff has succeeded and hence they are entitled to costs of the application and that of the Defendants dated 21st December, 2021.”
39. In the instant case, and in the given circumstances, the Honourable Court finds it reasonable and Equitable to allow each of the parties bear their own costs whatsoever.
VII. Conclusion and Disposition
40. In long analysis, the Honorable Court has carefully considered and weighed the conflicting parties’ interests as regards to balance of convenience. In a nutshell, I proceed to order the following:-
a) THAT the appeal be and is hereby found to lack merit and thus dismissed, taking that the lower court made proper findings in its ruling of 15th May 2024.
b) THAT for expediency's sake, this matter is to be mentioned on 16th July, 2025 in the presence of all parties before the Chief Magistrate’s Court for it to provide clear direction on the hearing and final disposal of this suit WITHIN THE NEXT 180 DAYS from that date thereof.
c) THAT each party to bear its own costs.
IT IS ORDERED ACCORDINGLY.
JUDGEMENT DELIVERED THROUGH THE MICRO–SOFT TEAMS VIRTUAL MEANS, SIGNED AND DATED AT KWALE THIS………23RD ……. DAY OF ………..JUNE………….2025
1. The Judgement of this Honourable Court pertains to an appeal preferred vide a Memorandum of Appeal dated 12th June 2024 and the 135 pages Record of Appeal dated 2nd December, 2024 instituted by the PASINI INVESTMENT LIMITED, the Appellant herein. The Appeal was against the County Government of Kwale, the Respondent herein.
2. Being aggrieved by the ruling of the lower court in Kwale Magistrates Court ELC No 1 of 2022 delivered on 15th May 2024, the Appellant moved this Honourable Court. In a nutshell, the said trial court proceeded to set aside its earlier orders of dismissing the suit for non-attendance and thus reinstated it. It further directed that the suit to be heard and determined on its own merit.
II. The Appellant’s appeal
3. The Appeal by the Appellant is contained in the three (3) grounds of appeal founded in the filed Memorandum of Appeal as follows:-
a) That the Learned Trial Magistrate erred in law in exercising its discretion wrongly and injudiciously
b) That the Learned Magistrate erred in fact and in law in reinstating the suit despite being not convinced by the reasons canvassed by the Respondent
c) The Learned Trial Magistrate erred in law by applying Section 1A [1] together with Sections 18 [1][a] of the Civil Procedure Act, Cap. 21 contrary to the provision of Article 159 of the Constitution of Kenya, 2010.
4. Subsequently, the Appellant urged this Honourable Court to allow the appeal in the following terms:-
a) This Honourable Court do set aside the ruling dated 15th May 2024.
b) The order dated 13th July 2022 dismissing the suit be reinstated.
c) Costs of this appeal be provided for.
III. Submissions
5. On 29th January 2025 while all the Counsels namely Ms. Oweya and Mr Amakobe Advocates for the Respondent and the Appellant respectively were present in Court, they were directed to have the appeal disposed of by way of written submissions. Pursuant to that, it is only the Appellant who obliged and a ruling date was reserved for 1st April 2025. However due to unavoidable circumstances it was eventually delivered on 23rd June, 2025.
IV. Appellant’s submissions
6. On behalf of the Appellant, the Law firm of Messrs. M. Oweya & Co Advocates filed their written submissions dated 4th March 2024. M/s. Oweya Advocate commenced her submission by providing a brief background of the matter. The Learned Counsel crafted two (2) issues for consideration by this Honourable Court in the course of its determination. These were:
a) Whether or not the appeal is merited
b) Who is liable to pay costs
7. On whether the appeal had merit. According to the Learned Counsel, the matter was initiated at the Environment & Land Court in Mombasa before being transferred to the Kwale law Courts. It took six [6] years before the matter was fixed for hearing for reasons that the Respondent was not interested in prosecuting its case. Later on, a request was made to have the matter transferred to the Magistrate’s Court in the year 2022 but still the Respondent failed to proceed with fixing a hearing date. Consequently, a hearing date was fixed for 13th July, 2022 but still on the material date the Respondents failed to appear before the Court a state of affairs that led to the dismissal of the suit for non-appearance.
8. Arising from this Ruling, the Respondent moved Court vide an application dated 23rd September, 2022 seeking for it to review, vary set aside or vacate its orders it issued on 13th July, 2022 dismissing the entire suit for non attendance of the Respondent. On 15th May, 2024 the Trial Court delivered the impugned Ruling which is the subject of this appeal.
9. The Appellant referred to the issue of the courts discretion to issue orders and made reference to the holding in the case of:- “George Kimotho Hewe & Another - Versus - Esther Kilonzo Mathuku HC Misc. Application No E72 of 2021 and in the case of:- “John Gaita Versus Seaforth Shipping Kenya Limited [2015] eKLR” where the court held that the court ought to exercise its discretion on principle and not on private opinion.
10. The court was urged to properly use its discretion in granting the orders sought before it. The court was referred to the contents under Paragraph 12 of the lower court ruling where the issue of network challenges alluded to by the Respondent was discussed. The awarded costs of a sum of Kenya Shillings Ten Thousand (Kshs 10,000/-) was also challenged as there was no other fate fit for the Respondent other than dismissal of the application for reinstatement. This Honourable Court was urged to allow the appeal with costs.
V. Analysis and Determination
11. I have read the Memorandum of Appeal, the Record of Appeal, written submission filed by the Appellant and the court record generally and identify the following three (3) issues that emerge for its determination:
VI. Issues for determination
a) Whether or not the Respondent satisfied the grounds for grant of an order of reinstatement of suit in its application in the trial court.
b) Whether or not the trial court erred in allowing the application
c) What order to make on costs.
ISSUE No. a). Whether or not the Respondent satisfied the grounds for grant of an order of reinstatement of suit in its application in the trial court.
12. From the record, this is a first appeal. The principle upon which a first appellate court exercises jurisdiction is well settled. The Court of Appeal outlined the principle in the case of “Susan Munyi – Versus - Keshar Shiani (2013) eKLR” as follows:
“As a first Appellate court our duty of course is to approach the whole of the evidence on record from a fresh perspective and with an open mind. We are to analyze, evaluate, assess, weigh, interrogate and scrutinize all of the evidence and arrive at our own independent conclusions.”
13. Additionally, in the case of:- “Gitobu Imanyara & 2 Others – Versus - Attorney General [2016] eKLR” the Court held that:
“this being a first appeal, it is trite law that this court is not bound necessarily to accept the findings of fact by the court below and that an appeal to this court from a trial by the High Court is by way of a retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect.”
14. The above principle was similarly outlined in the case of:- “Abok James Odera t/a A. J Odera & Associates – Versus - John Patrick Machira t/a Machira & Co Advocates [2013] eKLR” as follows:-
“This being a first appeal, we are reminded of our primary role as a first appellate court, namely, to re-evaluate, re-assess and re-analyse the extracts on the record and then determine whether the conclusions reached by the learned trial judge are to stand or not and give reasons either way.”
15. Prior to proceeding further, it is imperative that the Honourable Court extrapolates on the brief facts of the case. From the records, the Respondent herein who was the Plaintiff before the lower court instituted the suit vide a Plaint dated 26th May 2017. Initially, the suit was first instituted in the ELC Court in Mombasa but later on upon institution of the ELC court in Kwale, the file was transferred to Kwale. A request was made for it to be heard and determined by the magistrate’s court due to jurisdiction. The Respondent averred that it was the duly registered owner to all that parcel of land known as KWALE/DIANI COMPLEX/33 measuring approximately Three Decimal Two (3.2) Heactraes located in Diani location Msambweni Sub – County of the County of Kwale. It averred that the suit land which was reserved for public purposes came into its possession as Grant from the Government of Kenya on 24th November, 1998. It had leased it to the Ministry of Tourism for a term of 33 years commencing from 16th July, 1999.
16. However, upon conducting its investigation it came to its attention that the property had been encroached by the Appellant and surrounded by various plots. The Appellant without the knowledge and consent of the Respondent illegally and irregularly curved out the suit property creating other parcels for instance in this case parcel number Kwale Diani Complex/872
17. Arising from these, the Respondent sought for the Court to revoke the afore stated title allegedly acquired illegally and unlawfully and held by the Appellant. Further, extinguishing any rights that the Appellant held over the suit property. Additionally, the Respondent sought for a permanent injunction restraining any activities by the Appellant on the property and further for a declaration that Kwale/Diani Complex/872 is encroaching on Kwale/Diani Complex/33 and as a consequence order for rectification of the parcel records at County of Kwale land registry.
18. Juxtapose, on its part the Appellant filed a Statement of Defence dated and filed on 14th December, 2017. It denied all the averments raised from the Plaint. It challenged the capacity of the Respondent to conduct investigation on its own actions and activities as it was the one that had caused the sub – division of the suit land in dispute and which was sold to the Appellant at sum of Kenya Shillings Three Hundred Thousand (Kshs. 300, 000/=) and issued with a Certificate of title deed on 22nd, July, 2009. According to the Appellant, they were the rightful and absolute registered owners to all that property known as Kwale Diani Complex/872 arising from a sub – division of the parcel Kwale Diani Complex/33 and whereby the title deed had never been challenged.
19. Furthermore, the Appellant argued that from the filed pleadings the Respondent never pleaded any particulars of illegality, unlawfulness nor fraud on how the Appellant acquired the suit land as required by law nor was the matter reported at any police station for investigation to commence whatsoever. In the long run, the Appellant urged the Court to dismiss the suit with damages and costs awarded to them.
20. From the proceedings on record, the file came up severally for mention for directions before the magistrate’s court but it is noted that the Respondent was never present. The dates include 18th January 2022, 21st February 2022 and 9th March 2022 before Hon. Omido J. M. [SPM] for hearing. The matter was finally dismissed on 13th July 2022 after the Respondent failed to turn up for a hearing. The dismissal was thus for non-attendance. All the parties were present save for the 3rd party. The matter was set for hearing on 13th July 2022 which date an application for dismissal of the suit was made by Ms. Oweya Advocate for the Appellant. Thus, the suit was dismissed for non-attendance with costs to the Appellant.
21. Thereafter, the Respondent moved Court through filing of an application dated 23rd September 2022 seeking for the review and/or setting aside of the orders dismissing the suit and for reinstatement of the suit. The Respondent sought to set aside the orders dismissing the suit and having the same reinstated. In the affidavit supporting the application sworn by Shibonje Sydney Amakobe Advocate, it was averred that when the matter came up for hearing, the Counsel was unable to address court as a result of network challenges. According to the Counsel, by the time the suit was called for hearing, he was on his feet before the court in Mariakani before Hon Ngii. Thus, the non-attendance was an excusable mistake that should not be seen as a deliberate attempt to obstruct the administration of justice. Further that the Respondent has an inalienable right to a fair hearing and trial which behoves upon the court to reinstate the suit.
22. The application was vigorously opposed by the Appellant vide a replying affidavit sworn by Giovanni Quadrelli. That when the matter came up for hearing Counsel for the Respondent never made any appearance before court. That the matter was called out severally on the online platform but no response was received from the Respondent. That even after the matter proceeded the Respondent did not call the Appellant’s Counsel or the court to inform them of the network challenges but only did so by filing the application after 3 months.
23. It was averred that the application was an afterthought and had been brought before court in bad faith. That the Appellant would be prejudiced if the orders sought were allowed as the suit property legally belongs to it.
24. Upon hearing the application, on 15th May, 2024 the Honourable Court delivered its Ruling in favour of the Respondent who was the Applicant then. It is this Ruling which is the subject of the appeal before this Honourable Court. That is adequate on facts.
25. Primarily, I reiterate that this appeal is against a ruling on an application for setting aside an order for dismissal of a suit for non-attendance and for reinstatement of the suit. Hence the evidence on record for this court to reconsider and analyze is the evidence in respect of the application for reinstatement. It includes the Application dated 23rd September 2022, the Supporting Affidavit thereto, Replying Affidavit dated 18th November 2022 and the further affidavit sworn on 15th March 2023. The court will further consider the submissions on record by the Appellant dated 4th September 2023 and submissions by the respondent dated 31st August 2023.
26. On whether the Respondent satisfied the threshold for grant of orders to set aside and review of the orders for dismissal of the suit and reinstatement of the same. The relevant law governing setting aside Judgment or dismissal is Order 12 Rule 7 of the Civil Procedure Rules, 2010. It provides as follows:
“Where under this order judgment has been entered or a suit dismissed, the court, on application, may set aside or vary the judgment or order upon such terms as may be just”
27. The decision of whether to or not to allow an application for setting aside Judgment or an order for dismissal of a suit due to non-attendance of a Plaintiff is within the wide discretion of the court. This discretion has to be exercised judiciously, as was stated the case of “Shah – Versus - Mbogo (1979) EA 116 quoted with approval in the case of “John Mukuha Mburu – Versus - Charles Mwenga Mburu [2019] eKLR”, where that court held thus:-
“......this discretion is intended to be exercised to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake or error, but is not designated to assist a person who has deliberately sought, whether by evasion or otherwise to obstruct or delay the cause of justice.”
28. Undoubtedly, it is a matter that requires a delicate balancing and accommodating the substantive interest of all parties herein. Based on the chronology of events outlined above clearly indicates the indolence exhibited by the Respondent in prosecuting the suit. However, I am looking at the reasons advanced by the Respondent as to why the matter did not proceed as was scheduled. For the Court to exercise its discretion in favour of the Applicant, they have to satisfy that there is sufficient cause or reason to warrant it to be put into use in setting aside the order of dismissal and subsequently reinstate the suit. “Sufficient Cause” was defined by the Supreme Court of India in the case of “Parimal – Versus – Veena” which was cited with approval in the case of “Wachira Karani – Versus - Bildad Wachira [2016] eKLR”. In the case, the said Supreme Court stated that: -
“sufficient cause" is an expression which has been used in large number of statutes. The meaning of the word "sufficient" is "adequate" or "enough", in as much as may be necessary to answer the purpose intended. Therefore, the word "sufficient" embraces no more than that which provides a platitude which when the act done suffices to accomplish the purpose intended in the facts and circumstances existing in a case and duly examined from the view point of a reasonable standard of a curious man. In this context, "sufficient cause" means that party had not acted in a negligent manner or there was want of bona fide on its part in view of the facts and circumstances of a case or the party cannot be alleged to have been "not acting diligently" or "remaining inactive." However, the facts and circumstances of each case must afford sufficient ground to enable the court concerned to exercise discretion for the reason that whenever the court exercises discretion, it has to be exercised judiciously"
The court in the above case added that while deciding whether there is a sufficient cause or not, the court must bear in mind the object of doing substantial justice to all the parties concerned and that the technicalities of the law should not prevent the court from doing substantial justice and doing away with the illegality perpetuated on the basis of the judgment impugned before it. The test to be applied is whether the defendant honestly and sincerely intended to remain present when the suit was called for hearing. 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.”
29. Over the recent past the judiciary in its social transformation - STAJ - agenda, in a bid to ensure efficient and timely dispensation of matters has adopted technology in the course of running its duties. The same obviously comes along with various challenges that include the network challenges as was in the instant case.
30. The Respondent did annex evidence to support the fact that its Counsel on record was before other courts at the same time the matter was proceeding for hearing. I have noted with great profound the intensive observation made by the Learned Trial Court under Paragraphs 9, 10 and 12 of the Ruling to wit:
“Paragraph 9 – In my view therefore, I find no cause and/or good enough reasons why the Plaintiff’s Advocate was not present in Court when the said matter was called out……..”
Paragraph 10 – I have noted his sentiments as captured under grounds 5 and considering I am not seized with the then trial court teams account, that is an allegations I can not verify and/or prove……..”
Paragraph 12 - Having had the sight of the proceedings of the day, I note the suit was dismissed at 10.20am. That in my view, was sufficient time for Counsel to have sought necessary intervention if he was engaged and have to hold his brief as he dealt with other issues as highlighted under his 5th ground…….”
31. It is rather difficult to prove the challenges in the network as alleged but looking at the contested issues in the suit which are on ownership of the suit property herein, the court opines that a just finding is to be made and which includes allowing all the parties involved to ventilate their case. Challenges in network while appearing virtually before court is in my view sufficient cause.
32. The court in the case of “Mwangi S. Kimenyi –Versus - Attorney General & Another [2014] eKLR”, outlined the test to be considered in a case for reinstatement of suit where it stated as follows: -
“The decision whether a suit should be reinstated for trial is a matter of justice and it depends on the facts of the case. See the case of Ivita Vs Kyumbu [1984] KLR 441, Chesoni J. (as he then was) that: - 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.
The Defendant must however satisfy the court that he 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.”
33. It is well established that the issue of reinstatement of a suit is a discretion of the court. Black’s Law Dictionary (Tenth Edition) defines judicial discretion as:
“The exercise of judgment by a judge or court based on what is fair under the circumstances and guided by the rules and principles of law; a court’s power to act or not act when a litigant is not entitled to demand the act as a matter of right.”
34. Mativo J in the case of:- “Republic – Versus - Public Procurement Administrative Review Board & another; Mer Security & Communications System Ltd/Megason Electronics & Control 1978 (JV) & another (Interested Parties); Exparte Magal Security Systems Ltd/Firefox Kenya Limited (JV) [2019] eKLR cited with approval the classic definition of `discretion' by the King’s Bench in Rookey’s Case [77 ER 209; (1597) 5 Co.Rep.99] which stated as follows: -
“Discretion is a science, not to act arbitrarily according to men’s will and private affection: so the discretion which is exercised here, is to be governed by rules of law and equity, which are to oppose, but each, in its turn, to be subservient to the other. This discretion, in some cases follows the law implicitly, in others or allays the rigour of it, but in no case does it contradict or overturn the grounds or principles thereof, as has been sometimes ignorantly imputed to this Court. That is a discretionary power, which neither this nor any other Court, not even the highest, acting in a judicial capacity is by the constitution entrusted with.”
35. The provisions of Article 159 (1) & (2) of the Constitution of Kenya, 2010; Sections 1, 1A, 3 & 3A of the Civil Procedure Act, Cap. 21 and Sections 3 and 13 of the Environment & Land Court Act, No. 19 of 2011; Sections 101 of the Land Registration Act, No. 3 of 2012 and Section 150 of the Land Act, No. 6 of 2012 gives the court inherent power to make such orders as may be necessary for the ends of justice to be met. This is what denotes to discretion of the court. What the court is to consider while exercising discretion was emphasized in the case of “Patriotic Guards Limited – Versus - James Kipchirchir Sambu [2018] eKLR” where it was stated as follows:
“It is settled law that whenever a court is called upon to exercise its discretion, it must do so judiciously and not on caprice, whim, likes or dislikes. Judicious because the discretion to be exercised is judicial power derived from the law and as opposed to a judge’s private affection or will. Being so, it must be exercised upon certain legal principles and according to the circumstances of each case and the paramount need by court to do real and substantial justice to the parties in a suit.”
36. Looking at the circumstances of the instant case, land being overly sensitive and emotive in Kenya, I see no prejudice that is to be suffered by the Appellant in the event that the suit is reinstated and allowed to proceed on merit before the trial Court. I discern that on this front, I hold that the appeal fails. In saying so, I am guided by the holding in the case of:- “Karanja (Suing as the Representative of the Estate of David Karanja Ng’ang’a) – Versus - Kiboinet t/a Sweetland Consultant Limited & 2 others (Environment & Land Case 45B of 2021) [2024] KEELC 3654 (KLR) (30 April 2024) (Ruling) where it was stated:-
“Every person has a right to be heard as envisaged in the constitution of Kenya 2010 and the court cannot take the same away unless under extremely stringent circumstances. The right to be heard is one of the two cardinal rules established under the principle of natural justice and it is generally expressed as audi alteram partem (that a party should not be condemned unheard). However, this does not mean that a party must be heard in all circumstances or despite the circumstances. It only means that a party ought to be given the opportunity to present their case, and then it is up to that party to either utilise the opportunity or not. Most importantly, a court cannot force a party to actually utilise the opportunity afforded to them to present their case, what is important is that it can be shown that the Party was availed the opportunity to be heard”
ISSUE No. c). Who will bear the costs of the Appeal.
37. It is now well established that the issue of Costs is at the discretion of the Court. Costs meant the award that is granted to a party at the conclusion of the legal action, and proceedings in any litigation. The Proviso of Section 27 (1) of the Civil Procedure Rules Cap. 21 Laws of Kenya holds that Costs follow the events. By the event, it means outcome or result of any legal action. This principle encourages responsible litigation and motivates parties to pursue valid claims. See the cases of “Harun Mutwiri – Versus - Nairobi City County Government [2018] eKLR and “Kenya Union of Commercial, Food and Allied Workers – Versus - Bidco Africa Limited & Another [2015] eKLR, the court reaffirmed that the successful party is typically entitled to costs, unless there are compelling reasons for the court to decide otherwise.
38. I have well stated in previous precedence and most especially in the case of:- “Sagalla Lodge Limited – Versus - Samwuel Mazera Mwamunga & another (Suing as the Executors of Eliud Timothy Mwamunga – Deceased) [2022] eKLR”, that:
“58. The Black Law Dictionary defines “Cost” to means, “the expenses of litigation, prosecution or other legal transaction especially those allowed in favour of one party against the other”.
The provisions of Section 27 (1) of the Civil Procedure Act, Cap. 21 holds that Costs follow events. The issue of Costs is the discretion of Courts. From this provision of the law, it means the whole circumstances and the results of the case where a party has won the case. The events in this case is that the Notice of Motion application dated 7th December, 2021 by the Plaintiff has succeeded and hence they are entitled to costs of the application and that of the Defendants dated 21st December, 2021.”
39. In the instant case, and in the given circumstances, the Honourable Court finds it reasonable and Equitable to allow each of the parties bear their own costs whatsoever.
VII. Conclusion and Disposition
40. In long analysis, the Honorable Court has carefully considered and weighed the conflicting parties’ interests as regards to balance of convenience. In a nutshell, I proceed to order the following:-
a) THAT the appeal be and is hereby found to lack merit and thus dismissed, taking that the lower court made proper findings in its ruling of 15th May 2024.
b) THAT for expediency's sake, this matter is to be mentioned on 16th July, 2025 in the presence of all parties before the Chief Magistrate’s Court for it to provide clear direction on the hearing and final disposal of this suit WITHIN THE NEXT 180 DAYS from that date thereof.
c) THAT each party to bear its own costs.
IT IS ORDERED ACCORDINGLY.
JUDGEMENT DELIVERED THROUGH THE MICRO–SOFT TEAMS VIRTUAL MEANS, SIGNED AND DATED AT KWALE THIS………23RD ……. DAY OF ………..JUNE………….2025
Judgement delivered in the presence of: -
a) Mr. Daniel Disii, the Court Assistant.
b) No appearance for both the Appellant & the Respondent.
a) Mr. Daniel Disii, the Court Assistant.
b) No appearance for both the Appellant & the Respondent.