Background and proceedings
1.This instant appeal follows a Ruling by the trial court on an application for reinstatement of the appellants case that was dismissed for want of prosecution on the 31st May, 2019.
2.The trial suit; a declaratory suit, was instituted by the plaintiffs (hereinafter the appellants); against the defendant (hereinafter the respondent) for the satisfaction of the judgment in SPMCC No. 175 of 2005. The Respondent upon service entered appearance and filed its defence on 18th April, 2007.
3.Upon close of the pleadings, the appellants failed to settle down the matter for hearing, and as a consequence the respondent made an application to have the matter dismissed for want of prosecution on the 11th May, 2009, which application was dismissed, and the court extended an olive branch to the appellants to prosecute their case, within 14 days failure to which the suit will stand dismissed.
4.The matter was set-down for Hearing, where it was part-heard the 1st appellant testifying as PW1. The matter was severally slated for further hearings, until sometime in 22nd August, 2013 when the respondents instituted a Notice of Preliminary objection, against the suit in its entirety, for being in contravention of Section 8 of the Transfer of Business Act, Cap 500, Laws of Kenya, which was dismissed, and subsequent hearing dates slated by consent.
5.On 21st October, 2015, the matter came up for hearing, whilst both counsels present; Mr. Kinyanjui for the plaintiff and Mr. Serem for the defendant, stated that the parties were undertaking negotiations, which position dragged on through to 15th August, 2016 without clarity on the outcome of the negotiations. Further mentions followed thereafter, last appearing in court on 17th July, 2017. On 11th December, 2018, the matter was slated for Hearing, on 26th February, 2019 at the registry. On the said date, the plaintiffs being absent, the matter was dismissed for non-attendance want of prosecution.
6.The appellants instituted an application dated 27th February, 2019 seeking the reinstatement of the suit, where the court dismissed the same and held as follows;
“I have carefully gone through the record of the court and I find that;
I.This matter was instituted in court on 7th March, 2007 about twelve years ago and has never been heard.
II.That it was listed as matter no.1 in the cause list on 26th February, 2019. The court was informed by defence counsel that the plaintiffs had served them with a hearing notice and the matter was therefore confirmed for hearing and not mention.
...the plaintiff’s counsel avers and submits to have been ten minutes late, but she does not state to have requested to have the matter recalled so as to address the court on her predicament.
...The reason that, the advocate on record for the plaintiff’s was late is not sufficient reason to have the plaintiff’s suit reinstated.
...As such I dismiss it with costs to the defendants”
7.The appellants aggrieved with Ruling, instituted the appeal on the grounds that;
a)The learned magistrate erred in law and in fact by failing to put into consideration Notice of Motion and Supporting Affidavit thereto of the appellant.
b)The learned magistrate erred in law and fact by failing to put into consideration the submissions of the appellants.
c)The learned magistrate erred in law and fact by failing to consider the authorities relied on by the appellant in their submissions and sections of statute therein cited.
d)The learned magistrate erred both in law and fact by dismissing this suit for lack of merit.
Written Submissions
8.On the 12th of February, 2024, Directions were issued that the appeal be canvassed by way of submissions, and the same be filed and served within 21 days therefrom.
9.On 6th June, 2024 the matter came up before me for Directions, where the appellant’s counsel present and the respondent in absentia, stated that the they were yet to file their submissions, and the court granted them 7 days to file and serve the same, in strict terms that the court would solely rely on the documents on record filed by 28th June, 2024.
10.As at the compliance date only the respondents had filed their written submissions dated 4th July, 2024, which arguments, authorities cited and position of law, I have considered and I hereby determine as hereunder.
Analysis and Determination
11.I am alive to the fact that an appellate court can interfere with a trial court’s exercise of discretion only when the trial court misdirected itself and arrived at a wrong decision, or if it is manifest from the case as a whole that the court was clearly wrong in the exercise of that discretion and as a result there has been injustice – see Mbogo & Another – vs – Shah [1968] EA 93, in which at page 95 Sir Charles Newbold P. stated –
“A Court of Appeal should not interfere with the exercise of discretion of a single judge unless it is satisfied that the judge in exercising his discretion has misdirected himself in some matter and as a result has arrived at a wrong decision or unless it is manifest from the case as a whole that the judge has been clearly wrong in the exercise of his discretion and that as a result there has been injustice.
12.It is noteworthy that the trial court in its Ruling, dismissed the appellants suit for both non-attendance and want of prosecution. Which grounds constitute differing legal principles and ramifications.
13.As to non-attendance, the Civil procedure Rules, 2010 states as follows under [Order 12, rule 3.]
When only defendant attends.
3. (1) If on the day fixed for hearing, after the suit has been called on for hearing outside the court, only the defendant attends and he admits no part of the claim, the suit shall be dismissed except for good cause to be recorded by the court.
Whereas, for want of prosecution, Order 17 Rule 2 (3) of the Rules provides, inter alia: -
1). “In any suit in which no application has been made or step taken by either party for one year, the court may give Notice in writing to the parties to show cause why the suit should not be dismissed and if cause is not shown to its satisfaction, may dismiss the suit.
2). ………
3). any party to the suit may apply for its dismissal as provided in Sub-rule 1”.
14.It is not in dispute that the suit lingered before the trial court for over a decade, prior to its dismissal. However, I am of the view, that the trial court in its Ruling severally misdirected itself. First, the trial court held that the suit was instituted in court on 7th March, 2007 about twelve years ago and has never been heard. This is an erroneous position as the plaintiff’s case was part-heard where the 1st appellant testified as PW1.
15.Secondly, the parties had consistently prosecuted the matter; which constituted several interlocutory applications, a preliminary objection, and out-of-court negotiations which dragged on the determination of the matter, in the expense of making room for negotiations, whereby the parties last appeared together in court on 17th July, 2017. Consequently, on 11th December, 2018, the matter was slated for Hearing by the appellants counsel’s clerk, for Hearing on 26th February, 2019 at the registry, which date the suit was dismissed. It would follow, that the grounds for want for prosecution had not crystallized, as the matter was not dormant for over the period exceeding 12 months, prior to its dismissal.
16.This court on the legal ration of Order 17 (2) (3) of the Civil Procedure Rules, 2010 relies on the decision of “Investment Limited –Versus - G4s Security Services Limited (2015) eKLR where court held: -
“This order is permissive and allows quite significant room for exercise of discretion to sustain the suit.
And I think it is so especially when one fathoms the requirements of Article 159 of the Constitution of Kenya and the overriding objective when demands of courts to strive often, unless for very good cause, to serve substantive justice. This is well understood in the legal reality that dismissal of a suit without hearing it on merit is such draconian act comparable only to the proverbial “Sword of the Damocles”. But in reality, should be checked against yet another equally important constitutional demand that case should be disposed of expeditiously, which is founded upon the old adage and now an express Constitutional Principle of Justice under Article 159 (2) of the Constitution of Kenya that justice delayed is justice denied. Here I am reminded that justice is to all the parties not only to the Plaintiff.
17. In the case of Ivita – Versus - Kyumbu [1984] KLR 441 the Court laid down principles for issuance of an order of dismissal of suit for want of prosecution. It stated: -
“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, because it is no easy task for the documents, and, or witnesses may be missing and evidence is weak due to the disappearance of human memory resulting from lapse of time. The Defendant must however satisfy the court that it will be prejudiced by the delay or even that the plaintiff 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”.
18.In my view, as detailed hereinabove, the trial court’s choice to conjunctively dismiss the appellants suits for both non-attendance and want of prosecution, on erroneous grounds of failure to set down the matter for hearing despite a contradictory position in the proceedings, and failure to consider the non-crystallization of the 12 months timelines on dormancy of the suit, is erroneous and a miscarriage of the appellants’ suit.
19.This notwithstanding, it is not lost to me the lacklustre nature and laid-back approach of how the trial suit and this appeal was prosecuted. In fact, despite this court’s directive on the appellants to file and serve their written submissions, the same, at the time of making this determination, are not on record, thus this courts finding, is strictly limited to the documents on record as at 28th June, 2024.
20.It is a long-standing principle that the doors of justice ought not to be shut for a litigant over the mistakes of counsel. However, it is not lost to me that it is the primary duty of the plaintiffs to take steps to progress their case since they are the ones who dragged the defendant to court, 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. It is in the interest of justice that litigation must be conducted expeditiously and efficiently so that injustice by delay would be a thing of the past.
21.It is thus my considered view that this court’s impose strict timelines for the determination of the instant suit.
Conclusion and disposition
22.It is in the above position that I find that the appeal meritorious for this court to exercise its discretion, and I hereby set aside the trial courts Ruling dated 31st May, 2019 dismissing the appellants suit, and the same be and is hereby reinstated.
23.The matter be mentioned before the trial-court for Directions on 12th August, 2024 for the immediate disposal of the matter within 60 days from the date of Directions thereof.
24.Costs of the appeal assessed at Khs.30,000 all-inclusive, and are awarded to the appellants.
Dated, Signed and Delivered at NAIROBI Virtually this ……31ST………Day of JULY, 2024.
……………………
WENDY MICHENI
JUDGE