TILI NGUUTU VS THE CABINET SECRETARY LANDS AND HOUSING AND URBAN DEVELOPMENT AND 1 Others

1.The Applicant filed the Notice of Motion application dated 23rd January 2024 seeking the following orders:
1)Spent
2)THAT there be a stay of execution of the 3rd Respondent’s Bill of Costs ruling issued on 18/10/2023 pending the hearing and determination of this application.
3)THAT this Honourable Court be pleased to set aside the orders issued on 23/01/2024 and consequently the Honourable Court be pleased to reinstate for hearing of the application dated 19.12.2023.
4)THAT costs of this application be provided for.
2.The application is supported by the affidavit of the Applicant’s advocate Fred Kyalo Musyimi, who deposed that  the application dated 19.12.2023 was dismissed on the 23rd of January 2024 for non-attendance. The reason for non-attendance was that Counsel had instructed his legal assistant to request another advocate to hold his brief since the application was coming up for mention for directions.

3.In addition to that brief, his legal assistant had instructions to hand another brief to an advocate in a different court in Kitui CMCC No.E38 of 2020: Vilita Mwendwa & Another-vs-Julius Musyoka Kinyuli.

4.The legal assistant attended court on time and requested an advocate to hold brief in this matter and left to attend Court in the other case when this one was called out. Unfortunately, the advocate instructed to hold brief had stepped out of court after handling proceedings in his case.

5.Counsel for the Applicant deposed that he had 10 other matters on the said date coming up in different courts including two that had been fixed for hearing and therefore could not attend this court virtually.

6.It is the Applicant\'s prayer that in the best interest of justice, the court grants the orders sought seeing that the respondent will not be prejudiced.

7.On 23rd January 2023, the said application was scheduled for mention for directions before this court but there was no appearance for the Applicant and also no appearance for the Respondent. It was therefore dismissed with no order as to costs.

The Applicant’s written submissions

8.Counsel for the Applicant filed written submissions stating that it is within the court’s discretion to grant the orders sought as was held in the case of CMC Holdings Limited vs. Nzioki(2004)IKLR 173. They submitted that the discretion must be exercised judiciously after the applicant demonstrates sufficient cause for grant of the orders sought as was held in the case of Wachira Karani v. Bildad Wachira(2016)eKLR. It was submitted that counsel for the Applicant had demonstrated sufficiently that he intended to be represented in Court when the matter was called out by making arrangements for an advocate to hold his brief.

9.The case of Giro Commercial Bank Limited v. Heronsgate Limited & 8 others(2005)eKLR was cited where the court took cognizance of the fact that advocates with many matters scheduled often send their clerks to get other advocates to hold their briefs.

10.The Applicant submits that there was no malice on his part and that the case should be determined on merit. Further, it would be unfair to deny an applicant hearing because of an excusable error and that the application was brought without delay.
Analysis and Determination

11.The Applicant seeks to reinstate an application that was dismissed for non-attendance. The said application was dismissed in keeping with the provisions of Order 12 Rule 1 of the Civil Procedure Rules which provides that:
“If on the day fixed for hearing, after the suit has been called on for hearing outside the court, neither party attends, the court may dismiss the suit.”

12.Counsel for the Applicants explained the non-attendance with the reason that he had other matters to attend to on the material day and he had sent his legal assistant to find an advocate to hold his brief. The assistant also had two matters in different courts to watch brief. The advocate instructed to hold brief left the court after handling his cases when the legal assistant went to attend to another matter.

13.The Applicant relies on the holding in the case of CMC Holdings Ltd v James Mumo Nzioki [2004] eKLR where the Court of Appeal held that:
“Our view is that in law, the discretion that a court of law has, in deciding whether or not to set aside ex parte order such as before us was meant to ensure that a litigant does not suffer injustice or hardship as a result of among other things an excusable mistake or error. It would in our mind not be a proper use of such a discretion if the Court turns its back to a litigant who clearly demonstrates such an excusable mistake, inadvertence, accident or error.”

14.This was reiterated by the holding of Judge Harris (as he then was), where he had this say on the case of Shah vs Mbogo [1967] EA 116 and 123B:-
“The discretion 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 the person who has deliberately sought whether by evasion or otherwise, to obstruct or delay the course of justice.”

15.The Applicant further relied on the test for granting such discretion in favour of an applicant with one of them being that they must show sufficient cause for non-attendance in court. They relied on the holding in the case of Wachira Karani v Bildad Wachira [2016] eKLR where the court held that:
“I again repeat the question what does the phrase \"Sufficient cause\" mean$1 The Supreme Court of India in the  case of Parimal vs Veena observed 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 judgement 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.”

16.Counsel for the applicant has explained the reason for his non-attendance. He also filed this application without unreasonable delay.  The counsel stated that he had many cases to attend to on the material day, including 2 hearings and could therefore not attend this court even virtually. He submitted that it is common practice for advocates to send their clerks to find an advocate to hold their brief when overwhelmed with work. He relied on the observation of the Court in the case of Giro Commercial Bank Limited v Heronsgate Limited & 8 others [2005] eKLR that:
“I have considered the objector\'s explanation for failing to attend court in time and I think counsel\'s explanation can only surprise those who are strangers to the manner under which counsels are sometimes under extreme pressure to attend to many matters and are left with no option but to request either their pupils or their clerks to get another counsel to hold their brief. This is a common occurrence. The objectors brought their application to set aside the dismissal without delay and I accordingly in exercise of my discretion do accede to the same.”

17.While the court may understand the pressure that can sometimes be experienced by Counsel requiring them to attend various courts for various cases on the same day and while also appreciating that Counsel sometimes find themselves with no option but to seek assistance of other Counsel to hold brief,  this court observes that the number of cases the Counsel for the Applicant expected to single handedly attend to were quite many and this showed a high element of neglect of duty.

18.The court is however persuaded that it is in the interests of justice to exercise its discretion in favour of setting aside the orders of dismissal for the reason that the suit herein primarily belongs to the party and the Respondent will not suffer prejudice that cannot be compensated by way of costs.

19.Dismissal of a case is a drastic act and a litigant interested in prosecuting their case has the right to be heard, the court has discretion to reinstate the application dated 19th December 2023. It was held in the case of Fran Investments Limited v G4S Security Services Limited [2015] eKLR
“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.”
20.The final decision of the court is that the Application dated 23rd January 2024 has merit and the same is allowed in the following terms:
1.The orders of this Court issued on 23rd January 2024 are hereby set aside and the application dated 19th December 2023 is hereby reinstated for hearing on merit.
2.The Respondents are to file and serve their reply to the application within 7 days with leave to the Applicant to reply to the same.
3.The Applicant is to file and serve written submissions on the application within 7 days from the date of service of the replying affidavit and to file the submissions whether or not the replying affidavit will have been filed.
4.The Respondent is to file and serve submissions within 7 days from the date of service of submissions by the Applicant.
5.Mention for a ruling date on 31st October 2024
6.Thrown away costs in the sum of Kshs 5,000 are awarded to the 3rd  Respondent payable within 14 days.
Dated, Signed and Delivered at Kitui this 26th Day of  September 2024

L. G. KIMANI
JUDGE
Ruling read in open Court and virtually in the presence of
No attendance for the Applicant
No attendance for 1st and 2nd Respondents
Muli holding brief for Kasimu for the 3rd Respondent