RULING
1. The applicant has moved this Honourable Court by way of a motion dated 25 April 2024 seeking prayers that the firm of advocates of Mkan & Company be allowed to come on record and that the court be pleased to vary, set aside or review its orders made on 31 May 2023 dismissing the applicant’s suit for want of prosecution. The applicant has also sought for the order that the court be pleased to reinstate her case and that the suit be set down for hearing. The application is expressed to be brought under articles 48, 50, and 159 of the Constitution and Sections 1A, lB, 3A and 63(e) of the Civil Procedure Act, cap. 21 and Order 12 Rule 7 and Order 17 Rule 2(3) and Order 51 Rule 1 and Rule 15 of the Civil Procedure Rules.
2. The application is supported by the the applicant’s own affidavit sworn on 25 April 2024. According to the applicant, she instructed the firm of M/s Oloo and Company Advocates to act for her in this suit. The said firm of advocates did not inform her of the progress of the matter and since the case was taking too long to conclude, she opted to act in person. However, when the applicant took it upon herself to act in person, it was during the COVID 19 pandemic and was restricted from transacting any business on her case in court.
3. Even after the relaxation of restrictions associated with the pandemic, the applicant could still not conveniently access her file because, in wake of the Covid pandemic, the judiciary had embraced technology in the filing and management of cases, a development that the applicant was not used to.
4. Later on, the applicant learned that her case had been dismissed, more particularly on 30 May 2023, for want of prosecution.
5. According to the applicant, her failure to attend court in time was inadvertent. She, therefore, seeks to be excused and her case reinstated for hearing on merits before determination.
6. Mr. Akbar Esmail, the learned counsel for the respondent filed a replying affidavit on behalf of the respondent opposing the application. In the affidavit Mr. Esmail, has sworn that he is a director of the respondent.
7. According to Mr. Esmail, the plaintiff and the defendant entered into negotiations to settle the matter out of court but the negotiations fell through because the applicant failed to comply with the order from this Honourable Court, for discovery, and provide the necessary documents which, apparently would have formed the basis of negotiations.
8. The matter was last mentioned in court on 20 January 2020 and since then no further steps were taken in the matter until 16 December 2022 when counsel received a notice from the deputy registrar to show cause why the case should not be dismissed for want of prosecution. The notice notwithstanding, under Order 17 rule 2(5) of the Civil Procedure Rules, the applicant’s suit stood automatically dismissed as no steps had been undertaken in it for two years.
9. I have considered the application and the submissions of the learned counsel, the application is made on the premises that the applicant’s suit was dismissed for non-attendance on 31 May 2023 and that, in any event, the applicant was acting in person after having withdrawn her instructions from her previous advocates. However, the record shows that the matter was dismissed, not for non- attendance, but for want of prosecution after the necessary notice, specifically for this purpose, was sent to the parties by the court.
10. The notice was issued under Order 17 Rule 2 of the Civil Procedure Rules and was issued on 3 May 2023 notifying the parties that if no cause was shown why the suit should not be dismissed, it would be dismissed on 31 May 2025. On the material date none of the parties appeared in court and, therefore, since no cause had been shown why the suit should be sustained, it was dismissed for want of prosecution.
11. It is worth noting that as at 31May 2023 when the suit was dismissed, no action had been taken on it since 20 January 2020, more than three years down the line. And even after it had been dismissed in May 2023, it was not until April 2024, a year later, that the instant application to set aside the dismissal order was made. This in itself, shows that there has been some lethargy on the part of the plaintiff.
12. The ground that the plaintiff applicant was acting in person in place of her previous advocates is untenable because there appears to be no evidence that the applicant ever filed a notice to act in person. And even if the applicant was to be taken at her own word that she has hitherto been acting in person, there would be no need for the application for a new firm of advocates to come on record in place of her former advocates. Nonetheless, for whatever it is worth, are at liberty to come on record for the applicant.
13. Except for the prayer for M/s Mkan & Company Advocates to act for the plaintiff, the rest of the prayers in the application are disallowed and, to that extent, the application is dismissed. I make no orders as to costs.
1. The applicant has moved this Honourable Court by way of a motion dated 25 April 2024 seeking prayers that the firm of advocates of Mkan & Company be allowed to come on record and that the court be pleased to vary, set aside or review its orders made on 31 May 2023 dismissing the applicant’s suit for want of prosecution. The applicant has also sought for the order that the court be pleased to reinstate her case and that the suit be set down for hearing. The application is expressed to be brought under articles 48, 50, and 159 of the Constitution and Sections 1A, lB, 3A and 63(e) of the Civil Procedure Act, cap. 21 and Order 12 Rule 7 and Order 17 Rule 2(3) and Order 51 Rule 1 and Rule 15 of the Civil Procedure Rules.
2. The application is supported by the the applicant’s own affidavit sworn on 25 April 2024. According to the applicant, she instructed the firm of M/s Oloo and Company Advocates to act for her in this suit. The said firm of advocates did not inform her of the progress of the matter and since the case was taking too long to conclude, she opted to act in person. However, when the applicant took it upon herself to act in person, it was during the COVID 19 pandemic and was restricted from transacting any business on her case in court.
3. Even after the relaxation of restrictions associated with the pandemic, the applicant could still not conveniently access her file because, in wake of the Covid pandemic, the judiciary had embraced technology in the filing and management of cases, a development that the applicant was not used to.
4. Later on, the applicant learned that her case had been dismissed, more particularly on 30 May 2023, for want of prosecution.
5. According to the applicant, her failure to attend court in time was inadvertent. She, therefore, seeks to be excused and her case reinstated for hearing on merits before determination.
6. Mr. Akbar Esmail, the learned counsel for the respondent filed a replying affidavit on behalf of the respondent opposing the application. In the affidavit Mr. Esmail, has sworn that he is a director of the respondent.
7. According to Mr. Esmail, the plaintiff and the defendant entered into negotiations to settle the matter out of court but the negotiations fell through because the applicant failed to comply with the order from this Honourable Court, for discovery, and provide the necessary documents which, apparently would have formed the basis of negotiations.
8. The matter was last mentioned in court on 20 January 2020 and since then no further steps were taken in the matter until 16 December 2022 when counsel received a notice from the deputy registrar to show cause why the case should not be dismissed for want of prosecution. The notice notwithstanding, under Order 17 rule 2(5) of the Civil Procedure Rules, the applicant’s suit stood automatically dismissed as no steps had been undertaken in it for two years.
9. I have considered the application and the submissions of the learned counsel, the application is made on the premises that the applicant’s suit was dismissed for non-attendance on 31 May 2023 and that, in any event, the applicant was acting in person after having withdrawn her instructions from her previous advocates. However, the record shows that the matter was dismissed, not for non- attendance, but for want of prosecution after the necessary notice, specifically for this purpose, was sent to the parties by the court.
10. The notice was issued under Order 17 Rule 2 of the Civil Procedure Rules and was issued on 3 May 2023 notifying the parties that if no cause was shown why the suit should not be dismissed, it would be dismissed on 31 May 2025. On the material date none of the parties appeared in court and, therefore, since no cause had been shown why the suit should be sustained, it was dismissed for want of prosecution.
11. It is worth noting that as at 31May 2023 when the suit was dismissed, no action had been taken on it since 20 January 2020, more than three years down the line. And even after it had been dismissed in May 2023, it was not until April 2024, a year later, that the instant application to set aside the dismissal order was made. This in itself, shows that there has been some lethargy on the part of the plaintiff.
12. The ground that the plaintiff applicant was acting in person in place of her previous advocates is untenable because there appears to be no evidence that the applicant ever filed a notice to act in person. And even if the applicant was to be taken at her own word that she has hitherto been acting in person, there would be no need for the application for a new firm of advocates to come on record in place of her former advocates. Nonetheless, for whatever it is worth, are at liberty to come on record for the applicant.
13. Except for the prayer for M/s Mkan & Company Advocates to act for the plaintiff, the rest of the prayers in the application are disallowed and, to that extent, the application is dismissed. I make no orders as to costs.