WASHINGTON AUDI OTWALA AND CARJOT DAN ODHIAMBO OGAMBI AND 2 Others VS FRANCIS XAVIER OTIENO ODAWA

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1. The subject of this ruling is the application dated 4/06/2024 seeking the following orders; -
1) The Honourable court do grant leave to the Appellants/applicants to act in person in place of the firm of ODHIAMBO B.F O & CO ADVOCATES.
2) That this Honourable court be pleased to set aside the order dismissing the Applicants/Appellants suit made on 18/1/2023.
3) That pursuant to prayer 2 herein being granted the appellants/Applicants'' submissions filed on 18 /2/2021 be deemed as properly filed.
4) Costs of this application be provided for.

2. The application is premised on the following grounds:-
1) THAT the court dismissed the Appellant/Applicants appeal on 18/1/2024.
2) THAT the Appellant/Applicants appeal was dismissed without their knowledge.
3) THAT at the time the appeal was dismissed, the appellants/Applicants appeal was being handled by the firm of ODHIAMBO B.F O & CO ADVOCATES.
4) THAT the reason for the dismissal is due  to the failure by the advocate for the Applicant/Appellant to file their submissions on time as was directed by the court on 4th/2/2021.
5) THAT further, at the time the Applicants appeal was dismissed, their advocate was not in court to seek for the submissions to be admitted out of time or give an explanation as to why the same was filed out of time.
6) THAT while all this was ongoing in court, the Applicants were not aware of the same and only made a follow up in Kisumu registry and informed the file had been transferred to Siaya.
7) THAT upon following up in Siaya, that''s when the applicants learned that their appeal had been dismissed for the grounds mentioned above.
8) THAT the mistake of the previous advocate on record for the Applicants should not be allowed to befall the clients.
9) THAT it is trite law that the litigants cannot be penalized due to their advocates mistakes.

10) THAT the Applicants herein will suffer an injustice if the said appeal is not reinstated and heard on merit.

11) THAT it is in the interest of justice that the orders sort herein be granted.
3. The application is supported by the affidavit sworn by Washington Audi Otwala, Carjot Dan Odhiambo, Michael Ogolla Agot  and Lilian Akum Onyango. The depositions rehash the grounds of opposition set out hereinabove and I will not repeat them save to add that the respondents state they had been calling their advocates who never responded to their calls or informed them that the appeal was dismissed. It is their view that the Respondent will not suffer any prejudice if this application is allowed as it is trite law that a matter should be determined on merit and not without being heard. That the application is brought in good faith and in the interest of justice.
Grounds of opposition
4. The application is opposed by grounds of opposition dated 23/04/2025 as follows;-
1. THAT the orders sought by the Appellants/Applicants to set aside the consequent order dismissing the appeal is incapable of being granted for reasons that failure to file written submissions is akin to failure by the Appellants/Applicants to appear in Court to argue their case thus the appeal was rightly dismissed for want of prosecution.
2. THAT the Appellants/Applicants have admitted that the failure to file submissions was as a result of disobedience of a peremptory order dated 4th February, 2021 (issued by Honourable Justice A. Ombwayo) requiring the Appellants/Applicants to file their submissions on time. The Appellants/Applicants had been granted 10-days’ leave within which to file their written submissions. However, they failed to file the submissions thus the appeal died a natural death automatically as directed. A copy of the Order issued on 4th February, 2021 and signed by the Deputy Registrar on 10th February, 2021 is attached.
3. THAT based on the reason adduced by the Appellants/Applicants, the delay is neither reasonable nor excusable as it is in contumelious disregard of the directions previously issued by the Court.
4. THAT the way the Appellants/Applicants pursued the appeal portrays them as dilatory suitors who do not care about their appeal. Furthermore, the period of inaction has not been sufficiently explained by the Appellants/Applicants. The appeal stood dismissed as per the orders dated 4th February, 2021. The instant application is dated 4th June, 2024 which is exactly more than 3 years later. Therefore, the whole period of delay has not been explained to this Court’s satisfaction.
5. THAT the conduct of the Appellants/Applicants not to file their submissions on time or to follow and file the instant application on time showed no intention to prosecute the appeal. Failure to file the instant application in time clearly shows that the Appellants/Applicants as unsuccessful litigants acquiesced in the orders issued dismissing the appeal. There was no basis to leave a matter hanging over the respondent’s head without any plausible reason thus clogging the court registry. Therefore, the instant application is only a mere afterthought.
6. THAT the Appellants/Applicants have not given any reasonable explanation for the delay in following up with their case upon realizing that the appeal had been dismissed. The Appellants/Applicants have merely stated without specifying the date when they made initiated efforts to follow up from the registry in Kisumu. Additionally, they have not adduced any document on record to buttress their claim that they formally followed up with the registry. The Appellants/Applicants have not adduced any cogent evidence of the feedback received indicating that the file had been transferred to Siaya as alleged. It is trite law that he who alleges must prove. Therefore, in the absence of any proof to explain the delay, then the Court is inclined to find the delay as inordinate and inexcusable.
7. THAT the Appellants/Applicants did not perform their duty as required of a litigant. It is judicially settled that it is the primary duty of the Appellants/Applicants to take steps to progress their case since they are the ones who dragged the Respondent to Court. However, in this case, the Appellants/Applicants only waited for more than 3 years. It is judicially settled that it is wise to let sleeping dogs lie. The Appellants/Applicants had good reason to remain unconscious for such long period leaving the appeal to die a natural death at their own expense.
8. THAT the delay to file the written submissions on time has not given rise to substantial injustice to the Appellants/Applicants since the Court proceeded to rely on the pleadings previously filed.
9. THAT the orders sought by the Appellants/Applicants amounts to an abuse of the court process as the appeal had already been dismissed more than 3 years ago.
Submission
5. The application was heard by way of written submissions which parties filed and exchanged. The applicants submissions though undated were filed on 29/5/2025.
Applicants Submissions
6. My perusal of the submissions filed by the applicant show they largely cover the history of the case and go into the merits of the appeal. They attach a copy of the previous submissions filed by B.F. Odhiambo and other relevant documents. I did not find the same useful for purposes of the present application.
7. The respondents’ submissions were not on record either through the Court electronic filing system or the physical file. I have considered the submissions as well as the grounds of opposition as the later suffice under the provisions of Order 51 Rule 14 which gives a respondent the option to file either a replying affidavit or preliminary objection or grounds of opposition.
ANALYSIS AND DETERMINATION
8. After considering the foregoing the main issue that commends determination is whether the application dated  4/6//2023 has merit.
9. The applicants have sought the  leave  of  the court  to act in person in place of the firm of Odhiambo B.F O & Co Advocates.
Order 9 Rule 9 of the Civil Procedure Rules, 2010 provides for change of Advocates to be effected by order of Court or consent of parties to wit:
‘When there is a change of Advocate, or when a party decides to act in person having previously engaged an Advocate, after judgment has been passed, such change or intention to act in person shall not be effected without an order of the Court —
a. upon an application with notice to all the parties; or
b.  upon a consent filed between the outgoing Advocate and the proposed incoming Advocate or party intending to act in person as the case may be”
10. It is not in dispute that judgement was delivered in this matter and this court is sitting on its appellate jurisdiction and that the applicants were represented by the firm of Odhiambo B.F O & Co Advocates. The applicants now wish to represent themselves in the proceedings and they have expressed as such. Though I have not seen a Notice of Intention to Act in person, the intention has been expressed. Moreover it appears this is not a contentious issue as  the respondents never raised opposition in this regard.
11. The court therefore grants prayer 1 of the application to effect and validate the applicants intention to act in person.
12. I will now proceed to consider the substantive prayer. The application has been brought under Section 1A, 3A and 63(e) of the Civil Procedure Act and Order 12 Rule 7 and Article 159 of the Constitution and all other enabling provisions of the law).
13. The law on setting aside of ex parte orders is found under Order 12, rule 7 of the Civil Procedure Rules, 2010 which provides thus:
“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.”
14. Therefore, the power to set aside is discretionary. It is trite the court cannot invoke its discretion whimsically but must do so judiciously. Shah Vs. Mbogo & Another (1967) EA 116 the court outlined some guidelines for consideration in exercising the discretion and the importance for an applicant to show sufficient cause. Further that the court must aim at avoiding injustice resulting from an accident, inadvertence or excusable mistake or error.
15. The orders sought to be set aside arise out of the proceedings of 18/01/2023. Mr Mugoye for the respondent informed the court that in the year 2021 Justice Ombwayo had directed the defendant to file submissions on the appeal in the absence of which the appeal would stand dismissed. Counsel observed that the same had not been filed and prayed that the appeal be dismissed. The defendants were absent in court.
16. My sister Koross J referring to the orders noted that indeed the orders of 4/02/2021 were specific that in the event of counsel failing to file submissions within 10 days from 4/02/21 which lapsed on 15/02/2021 excluding Sunday the appeal was automatically dismissed. The court stated that the orders of Justice Ombwayo were never set aside. That moreover the applicant had proceeded to file submissions dated 17/02/2021 without first seeking the leave to have the same filed out of time. The court reiterated the appeal stood dismissed.
17. The applicants then filed the present application dated 9/10/2024 about 1 year and 9 months later. The applicants attribute the above failures to the mistake of their advocate who failed to attend court and missed the opportunity to make the requisite application on 18/1/2023.They state that their counsel never informed them of the orders of dismissal made on 18/1/2023.
18. It is urged that the mistake of their advocate should not be visited upon the applicants. Indeed, the question as to whether counsels mistake should be visited upon a client has been a subject of many judicial pronouncements where the courts have been unanimous that the where the mistake is excusable then it should and the court must at all times lean on upholding justice. See Belinda Murai & Others Vs Amos Wainaina (1978) KLR 278; Phillp Chemwolo & another Vs Augustine Kubebe (1982-88) KAR
19. It is however important to note that every case is decided depending with its facts and circumstances. There are also cases where the courts have also held in the affirmative. In the case of Nilan Vs. Patel & Others (1969) EA cited by Lenaola J (now Judge of the Supreme Court of Kenya) in Dickson Muriti Kimonde versus Kenya Commercial Bank Ltd. (2006) Eklr a delay of one year in prosecuting a case was found inexcusable. The court held that an indolent party must reckon with consequence of inaction.
20. In Rukenya Buuri versus Marimi Minyora and 2 others (2018) Eklr the court held a litigant must be diligent enough to follow up how his case is being handled by his advocate.
21. I have anxiously reviewed the events in this matter and my concern is the indolence displayed by the applicants. Firstly, the appellants are the ones who instructed their Counsel to lodge the appeal which was indeed lodged at Kisumu in the year 2020 before it was transferred to Siaya ELC.
22 Firstly it is noteworthy that the appeal stood dismissed immediately on expiry of the deadline set by the learned judge on 15/2/2021. Secondly the matter was before court on 18/01/2023 three years later and the appellants were not in court maybe for the reason that they were represented by counsel. But did it not bother them that 3 years down the line they had not heard anything about the outcome of their appeal.
23. Further as noted earlier it took the applicants about 1 year and 9 Months to realise that there were proceedings on 18/01/23 which reiterated that the appeal stood dismissed to file the present application. For me had they been following up on their appeal we would not be dealing with this application before court. These are simply indolent litigants who had lost interest in their appeal as rightly observed in the orders of 4/2/2021.
24. Is the above delay excusable. From the depositions I had no documented evidence before the court to show the actual efforts made by the applicants. The applicants state they were informed the file had been transferred to Siaya but no communication has been annexed in this regard. It is also not disclosed when it is that they got this information. If calls were made to their advocates and the same remained unanswered no call logs have been displayed to the court. But assuming the calls were indeed made and remained unanswered it is not clear why the applicants could not attend their lawyers’ offices physically. I have not seen any bonafides on the part of the applicants, they simply remained inactive and were not diligent.
25. I think whoever comes to court to seek equity must make full disclosure of the circumstances surrounding their application. While lawyers are bound to keep their clients informed of the progress of their cases, it is my view that in as much as a mistake of counsel should not be visited upon a client, it is also very important litigants should be vigilant in pursuing their matters.
26. The court has not been persuaded and finds no sufficient reason to exercise its discretion in favor of the applicants.
27. The application lacks merit and it is hereby dismissed. I will order that each party bears its own costs of this application.
28. Leave to appeal this decision is granted if required.
It is so ordered.
Delivered and Dated at Siaya This 21st  Day of November 2025

Ruling delivered virtually through Microsoft teams Video Conferencing Platform in the presence of:

Washington Audi Otwala 1st Appellant in person
Carjot Dan Odhiambo Ogambi 2nd Appellant in person
Michael Ogolla Agot 3rd Appellant in person
Lilian Akum Onyango 4th Appellant in person
Ms. Mugo Holding Brief for Mr. Orende
Court Assistant: Ishmael Orwa

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