Willy Kiritu Kigitho suing through his Attorney Peter Mwangi Kiritu (hereinafter referred to as the applicant) seeks orders from this court that the proceedings of 19th November, 2024 and all the consequential orders terminating/striking out/ dismissing the Plaintiffs suit for non-attendance be set aside and that the court to reinstate the same for hearing and determination on merit. That costs be provided for.
The application is premised on grounds that the Plaintiff made a change in representation from the firm of Messrs Mirugi Kariuki & Co. Advocates to the firm of J.N Mwongela & Co. Advocates through a notice of change of advocates dated 16th February 2024. The matter came up for mention on 19th November, 2024 before the Honorable court in the presence of the Defendant’s Counsel without notice to the Plaintiff’s Advocate on record. The mention notice dated 14th October 2024 prepared by the 1st Defendant's Advocates on record was served on the Plaintiff's erstwhile advocates instead of the Plaintiffs current advocates on record.
The applicant laments that in the absence of the Plaintiff’s counsel on the mention date on 19th November-v 2024, this honorable court dismissed the Plaintiff s suit for non-attendance. The applicant is still interested in prosecuting this matter and the sins and omissions of an Advocate should not be visited upon an innocent litigant and the honorable court ought to consider the Plaintiff/Applicant’s case with broad understanding. Striking out this matter on a technicality does not resolve the issues between the parties herein and in the circumstance, it is only fair and just that the proceedings on the 19th November. 2024 be set aside and the Plaintiffs suit be reinstated to avoid multiplicity in litigation.
According to the applicant, the honorable Court is espoused with wide and unfettered discretion to set aside the orders of 19th November, 2024 herein to avoid a miscarriage of justice. As the Plaintiff/Applicant is bound to suffer irreparably unless the aforesaid order herein is set aside as he would be condemned unheard contrary to the rules of natural justice. On the other hand the Respondents will suffer no prejudice beyond the scope of costs if the matter herein is admitted for hearing and determination on merit. In the circumstances it is only fair and just and in the accord with the tenets of natural justice that the order dismissing the instant suit for non-attendance herein be set aside and the matter herein is reinstated to proceed for hearing and determination on merit.
The Respondents’ Response
The respondents filed a reply vide the replying affidavit of Albert S Kuloba an advocate of the High Court of Kenya stating that the antecedents in this matter clearly show that the plaintiff has not been keen to pursue this matter either by the conduct and omission of the previous advocates on record and the current advocates on record.
The court record shows that the applicant’s advocates have on numerous occasions not been attending court whenever this matter comes up yet it is their suit or a suit in which they initiated on behalf of their client. In as much as the applicant states that they filed the notice of change of advocates, the same was never served or received by the respondents’ counsel firm and this is on the email referred to a paragraph 3 of the applicant’s affidavit as t'HMM2JY which is said to have forwarded the notice of change to the respondents advocates’ firm. The address is erroneous meaning the notice was never duly served upon the firm. The deponent states that the email address is quoted as kulobawangila@gmail.com and not "kulobaawangila@gmail.com", the latter being the email the plaintiff alleges to have used to serve the notice of change upon his firm where the difference is seen emphasized in bold.
In the circumstances the applicant cannot blame his firm for serving the advocate who, for lack of service of the change on the firm and that the firm had no knowledge of any change of advocates. The respondent argues that the applicant’s advocates said to have taken over the matter have a responsibility since having taken over the matter are seen to be the initiators of the suit and need to own the suit and exercise diligence in conducting the same and cannot rely on the defendants to notify them of when their suit is scheduled. The affidavit of service indicating service of the mention notice on the plaintiffs previous advocates, cannot be used as an excuse to award the orders when the notice of change of advocates it has been shown was never served upon his firm so that they could appreciate that indeed there is another advocate who has come on board.
According to the respondents, the applicant’s advocates therefore due to their indolence in not following up with the brief to know when it was coming up, having taken over and relying on the defendants to inform them, shot themselves in the foot. The record shows that on the 19th November 2024, none of the parties attended court and the matter was dismissed for non-attendance and it therefore not the 1st defendant's fault that the plaintiffs case was dismissed but the plaintiffs only have themselves to blame. The applicant in as much as they should not suffer because of their advocate’s indolence, do have a remedy against them in negligence.
Analysis and Determination
One of the pivotal provisions of the constitution of Kenya 2010 is Article 159 of the Constitution, which provides as follows:
“Judicial authority
(1) Judicial authority is derived from the people and vests in, and shall be exercised by, the courts and tribunals established by or under this Constitution.
(2) In exercising judicial authority, the courts and tribunals shall be guided by the following principles—
(a) justice shall be done to all, irrespective of status;
(b) justice shall not be delayed;
(c) alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms shall be promoted, subject to clause (3);
(d) justice shall be administered without undue regard to procedural technicalities; and
(e) the purpose and principles of this Constitution shall be protected and promoted.
(3) Traditional dispute resolution mechanisms shall not be used in a way that—
(a) Contravenes the Bill of Rights;
(b) is repugnant to justice and morality or results in outcomes that are repugnant to justice or morality; or
(c) is inconsistent with this Constitution or any written law.”
The rationale of this Article is that it is the duty of the court, litigants, as well as advocates, to ensure that matters are concluded expeditiously without inexcusable delay. This article is buttressed by Sections 1A and IB, of the Civil Procedure Act, Cap 21, Laws of Kenya, that provide as follows:-
“1A. Objective of Act
(1) The overriding objective of this Act and the rules made hereunder is to facilitate the just, expeditious, proportionate and affordable resolution of the civil disputes governed by the Act.
(2) The Court shall, in the exercise of its powers under this Act or the interpretation of any of its provisions, seek to give effect to the overriding objective specified in subsection (1).
(3) A party to civil proceedings or an advocate for such a party is under a duty to assist the Court to further the overriding objective of the Act and, to that effect, to participate in the processes of the Court and to comply with the directions and orders of the Court.
1B. Duty of Court
(1) For the purpose of furthering the overriding objective specified in section 1A, the Court shall handle all matters presented before it for the purpose of attaining the following aims—
(a) the just determination of the proceedings;
(b) the efficient disposal of the business of the Court;
(c) the efficient use of the available judicial and administrative resources;
(d) the timely disposal of the proceedings, and all other proceedings in the Court, at a cost affordable by the respective parties; and
(e) the use of suitable technology.”
Section 3A of the Civil Procedure Act gives the court wide discretion over matters and issues that are before it, including the question as to whether it should or should not reinstate a suit dismissed on account of unreasonable delay on the part of the parties to prosecute it. Section 3A reads:
“3A. Saving of inherent powers of court. Nothing in this Act shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.”
The factors taken into account or consideration for the purpose of reinstatement of suits are numerous, and were addressed in Ivita vs. Kyumbu [1984] KLR 441 (Chesoni J), where the court 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.”
Ivita vs. Kyumbu [1984] KLR 441 (Chesoni J) was followed in Jim Rodgers Gitonga Njeru vs. Al-Husnain Motors Limited & 2 others [2018] eKLR (Muchemi J), where the court said:
“It is my view that such would be valid considerations in an application for dismissal of suit for want of prosecution, which in this case has already been done; and it is manifest from the record that the reason why the suit was dismissed in the first place was that the Court was satisfied there was inordinate delay of 3 years for which there was no explanation.”
In James Mwangi Gathara & another vs. Officer Commanding Station Loitoktok & 2 others [2018] eKLR (Nyakundi J), the court said:
“Before I conclude this matter, I need to bring to the attention of the plaintiff the manner in which he is pursuing his rights. In my view the proceedings in this claim seems to be focusing on interlocutory applications without addressing the main dispute which brought the parties to court in the first instance. It is time the plaintiff decides categorically whether he has a claim to be heard on the merits or continuous slumbering only to rise up when he has been stripped of certain rights during the adjudication processes. In my assessment and based on the history of this case the plaintiff is guilty of laches. I think I have said enough on this point.”
Reinstatement of a suit is at the discretion of the court, which discretion ought to be exercised in a just manner, as was held in Bilha Ngonyo Isaac vs. Kembu Farm Ltd & another & another [2018] eKLR ((JN. Mulwa J), which echoed the decision of the court in Shah vs. Mbogo & Another (1967) EA 116 (Harris J), where the court stated on the matter of discretion:
“The discretion is intended so as to be exercised to avoid injustice or hardship resulting from inadvertence or excusable mistake or error but is not designed to assist a person who has deliberatively sought whether by evasion or otherwise to obstruct or delay the course of justice.”
One of the issues that the court ought to consider in respect to dismissal of suits for delays and the subsequent applications for reinstatement, is the need for expeditious conclusion of suits.
In Mobile Kitale Service Station vs. Mobil Oil Kenya Limited & another [2004] eKLR (Warsame J) where it was held:
“I must say that the Courts are under a lot of pressure from backlogs and increased litigation, therefore it is in the interest of justice that litigation must be conducted expeditiously and efficiently so that injustice caused by delay would be a thing of the past. Justice would be better served if we dispose matters expeditiously. Therefore, I have no doubt the delay in the expeditious prosecution of this suit is due to the laxity, indifference and/ or negligence of the plaintiff. That negligence, indifference and/or laxity should not and cannot be placed at the doorsteps of the defendant. The consequences must be placed on their shoulders.”
I have considered the facts of this case and the rival submissions and do find that the suit was not dismissed for non –attendence but the file was closed on the mention date which was as good as dismissing the suit for non -attendance. In my view, the applicant has given sufficient reasons for the reinstatement of the suit thus that there was mistake in service of the mention notice on his previous advocates and that the suit was dismissed on a mention date as opposed to a hearing date and therefore I do exercise my judicial discretion and reinstate the suit for hearing. Hearing on the 28th of September 2025.
The application is premised on grounds that the Plaintiff made a change in representation from the firm of Messrs Mirugi Kariuki & Co. Advocates to the firm of J.N Mwongela & Co. Advocates through a notice of change of advocates dated 16th February 2024. The matter came up for mention on 19th November, 2024 before the Honorable court in the presence of the Defendant’s Counsel without notice to the Plaintiff’s Advocate on record. The mention notice dated 14th October 2024 prepared by the 1st Defendant's Advocates on record was served on the Plaintiff's erstwhile advocates instead of the Plaintiffs current advocates on record.
The applicant laments that in the absence of the Plaintiff’s counsel on the mention date on 19th November-v 2024, this honorable court dismissed the Plaintiff s suit for non-attendance. The applicant is still interested in prosecuting this matter and the sins and omissions of an Advocate should not be visited upon an innocent litigant and the honorable court ought to consider the Plaintiff/Applicant’s case with broad understanding. Striking out this matter on a technicality does not resolve the issues between the parties herein and in the circumstance, it is only fair and just that the proceedings on the 19th November. 2024 be set aside and the Plaintiffs suit be reinstated to avoid multiplicity in litigation.
According to the applicant, the honorable Court is espoused with wide and unfettered discretion to set aside the orders of 19th November, 2024 herein to avoid a miscarriage of justice. As the Plaintiff/Applicant is bound to suffer irreparably unless the aforesaid order herein is set aside as he would be condemned unheard contrary to the rules of natural justice. On the other hand the Respondents will suffer no prejudice beyond the scope of costs if the matter herein is admitted for hearing and determination on merit. In the circumstances it is only fair and just and in the accord with the tenets of natural justice that the order dismissing the instant suit for non-attendance herein be set aside and the matter herein is reinstated to proceed for hearing and determination on merit.
The Respondents’ Response
The respondents filed a reply vide the replying affidavit of Albert S Kuloba an advocate of the High Court of Kenya stating that the antecedents in this matter clearly show that the plaintiff has not been keen to pursue this matter either by the conduct and omission of the previous advocates on record and the current advocates on record.
The court record shows that the applicant’s advocates have on numerous occasions not been attending court whenever this matter comes up yet it is their suit or a suit in which they initiated on behalf of their client. In as much as the applicant states that they filed the notice of change of advocates, the same was never served or received by the respondents’ counsel firm and this is on the email referred to a paragraph 3 of the applicant’s affidavit as t'HMM2JY which is said to have forwarded the notice of change to the respondents advocates’ firm. The address is erroneous meaning the notice was never duly served upon the firm. The deponent states that the email address is quoted as kulobawangila@gmail.com and not "kulobaawangila@gmail.com", the latter being the email the plaintiff alleges to have used to serve the notice of change upon his firm where the difference is seen emphasized in bold.
In the circumstances the applicant cannot blame his firm for serving the advocate who, for lack of service of the change on the firm and that the firm had no knowledge of any change of advocates. The respondent argues that the applicant’s advocates said to have taken over the matter have a responsibility since having taken over the matter are seen to be the initiators of the suit and need to own the suit and exercise diligence in conducting the same and cannot rely on the defendants to notify them of when their suit is scheduled. The affidavit of service indicating service of the mention notice on the plaintiffs previous advocates, cannot be used as an excuse to award the orders when the notice of change of advocates it has been shown was never served upon his firm so that they could appreciate that indeed there is another advocate who has come on board.
According to the respondents, the applicant’s advocates therefore due to their indolence in not following up with the brief to know when it was coming up, having taken over and relying on the defendants to inform them, shot themselves in the foot. The record shows that on the 19th November 2024, none of the parties attended court and the matter was dismissed for non-attendance and it therefore not the 1st defendant's fault that the plaintiffs case was dismissed but the plaintiffs only have themselves to blame. The applicant in as much as they should not suffer because of their advocate’s indolence, do have a remedy against them in negligence.
Analysis and Determination
One of the pivotal provisions of the constitution of Kenya 2010 is Article 159 of the Constitution, which provides as follows:
“Judicial authority
(1) Judicial authority is derived from the people and vests in, and shall be exercised by, the courts and tribunals established by or under this Constitution.
(2) In exercising judicial authority, the courts and tribunals shall be guided by the following principles—
(a) justice shall be done to all, irrespective of status;
(b) justice shall not be delayed;
(c) alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms shall be promoted, subject to clause (3);
(d) justice shall be administered without undue regard to procedural technicalities; and
(e) the purpose and principles of this Constitution shall be protected and promoted.
(3) Traditional dispute resolution mechanisms shall not be used in a way that—
(a) Contravenes the Bill of Rights;
(b) is repugnant to justice and morality or results in outcomes that are repugnant to justice or morality; or
(c) is inconsistent with this Constitution or any written law.”
The rationale of this Article is that it is the duty of the court, litigants, as well as advocates, to ensure that matters are concluded expeditiously without inexcusable delay. This article is buttressed by Sections 1A and IB, of the Civil Procedure Act, Cap 21, Laws of Kenya, that provide as follows:-
“1A. Objective of Act
(1) The overriding objective of this Act and the rules made hereunder is to facilitate the just, expeditious, proportionate and affordable resolution of the civil disputes governed by the Act.
(2) The Court shall, in the exercise of its powers under this Act or the interpretation of any of its provisions, seek to give effect to the overriding objective specified in subsection (1).
(3) A party to civil proceedings or an advocate for such a party is under a duty to assist the Court to further the overriding objective of the Act and, to that effect, to participate in the processes of the Court and to comply with the directions and orders of the Court.
1B. Duty of Court
(1) For the purpose of furthering the overriding objective specified in section 1A, the Court shall handle all matters presented before it for the purpose of attaining the following aims—
(a) the just determination of the proceedings;
(b) the efficient disposal of the business of the Court;
(c) the efficient use of the available judicial and administrative resources;
(d) the timely disposal of the proceedings, and all other proceedings in the Court, at a cost affordable by the respective parties; and
(e) the use of suitable technology.”
Section 3A of the Civil Procedure Act gives the court wide discretion over matters and issues that are before it, including the question as to whether it should or should not reinstate a suit dismissed on account of unreasonable delay on the part of the parties to prosecute it. Section 3A reads:
“3A. Saving of inherent powers of court. Nothing in this Act shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.”
The factors taken into account or consideration for the purpose of reinstatement of suits are numerous, and were addressed in Ivita vs. Kyumbu [1984] KLR 441 (Chesoni J), where the court 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.”
Ivita vs. Kyumbu [1984] KLR 441 (Chesoni J) was followed in Jim Rodgers Gitonga Njeru vs. Al-Husnain Motors Limited & 2 others [2018] eKLR (Muchemi J), where the court said:
“It is my view that such would be valid considerations in an application for dismissal of suit for want of prosecution, which in this case has already been done; and it is manifest from the record that the reason why the suit was dismissed in the first place was that the Court was satisfied there was inordinate delay of 3 years for which there was no explanation.”
In James Mwangi Gathara & another vs. Officer Commanding Station Loitoktok & 2 others [2018] eKLR (Nyakundi J), the court said:
“Before I conclude this matter, I need to bring to the attention of the plaintiff the manner in which he is pursuing his rights. In my view the proceedings in this claim seems to be focusing on interlocutory applications without addressing the main dispute which brought the parties to court in the first instance. It is time the plaintiff decides categorically whether he has a claim to be heard on the merits or continuous slumbering only to rise up when he has been stripped of certain rights during the adjudication processes. In my assessment and based on the history of this case the plaintiff is guilty of laches. I think I have said enough on this point.”
Reinstatement of a suit is at the discretion of the court, which discretion ought to be exercised in a just manner, as was held in Bilha Ngonyo Isaac vs. Kembu Farm Ltd & another & another [2018] eKLR ((JN. Mulwa J), which echoed the decision of the court in Shah vs. Mbogo & Another (1967) EA 116 (Harris J), where the court stated on the matter of discretion:
“The discretion is intended so as to be exercised to avoid injustice or hardship resulting from inadvertence or excusable mistake or error but is not designed to assist a person who has deliberatively sought whether by evasion or otherwise to obstruct or delay the course of justice.”
One of the issues that the court ought to consider in respect to dismissal of suits for delays and the subsequent applications for reinstatement, is the need for expeditious conclusion of suits.
In Mobile Kitale Service Station vs. Mobil Oil Kenya Limited & another [2004] eKLR (Warsame J) where it was held:
“I must say that the Courts are under a lot of pressure from backlogs and increased litigation, therefore it is in the interest of justice that litigation must be conducted expeditiously and efficiently so that injustice caused by delay would be a thing of the past. Justice would be better served if we dispose matters expeditiously. Therefore, I have no doubt the delay in the expeditious prosecution of this suit is due to the laxity, indifference and/ or negligence of the plaintiff. That negligence, indifference and/or laxity should not and cannot be placed at the doorsteps of the defendant. The consequences must be placed on their shoulders.”
I have considered the facts of this case and the rival submissions and do find that the suit was not dismissed for non –attendence but the file was closed on the mention date which was as good as dismissing the suit for non -attendance. In my view, the applicant has given sufficient reasons for the reinstatement of the suit thus that there was mistake in service of the mention notice on his previous advocates and that the suit was dismissed on a mention date as opposed to a hearing date and therefore I do exercise my judicial discretion and reinstate the suit for hearing. Hearing on the 28th of September 2025.