Benard O. Otieno v Benson Mbuthia Njiru t/a B. N. Mbuthia & Company Advocates [2017] KEHC 1235 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL SUIT  NO. 503  OF 2011

BENARD O. OTIENO.....................................................PLAINTIFF

- V E R S U S –

BENSON MBUTHIA NJIRU T/A

B. N. MBUTHIA & COMPANY ADVOCATES..........DEFENDANT

RULING

1. On 9th June 2016, Hon. Mr. Justice Mrima dismissed this suit for want of prosecution.  Benard O. Otieno, the plaintiff/ applicant has now taken out the motion dated 17. 2.2017 in which he sought for the dismissal order to be reviewed and set aside.  The motion is supported by the affidavit of Jackson Muema Kisinga.  When served with the motion, Benson Mbuthia Njiru swore a replying affidavit to oppose the motion.  When the motion came up for interpartes hearing learned counsels recorded a consent order to have the same disposed of by written submissions.

2. I have considered the grounds stated on the face of the motion and the facts deponed in the affidavits filed in support and against the applications. I have further considered the rival submissions.  It is the submission of the plaintiff/applicant that no notice was served upon the parties of the notice to show cause why the suit should not be dismissed for want of prosecution.

3. It is further argued that the learned judge dismissed the suit on the mistaken impression that the matter was an appeal and on the basis that no steps had been taken to make the suit ready for trial.

4. The respondent on the other hand was of the view that the motion lacks merit.  The respondent submitted that the notices to show cause were posted in the internet and all parties were aware.  The respondent further pointed out that the motion was filed 8 months after the dismissal was made.  The respondent also attacked the affidavit of Jackson Kisinga filed in support of the motion claiming that the same was filed without the authority of the client.

5. It is clear from the record that no party appeared before the court when the notice to show cause came up for hearing.  The plaintiff’s advocate has stated that he had no knowledge of the notice. It is not in dispute that the notice to show cause was posted via the internet. It is possible that none of the parties saw the notice and I will therefore give the plaintiff the benefit of doubt by accepting his plea that he was not served.  Another important ground put forward is that the suit was dismissed under the provisions relating to appeals.  I have examined the record and it is apparent that both the provisions of Orders 17 and 42 of the Civil Procedure Rules were cited.  I do not think the error is fatal.

6. The plaintiff/respondent has also pointed out that the honourable judge did not notice that all the preliminary procedures necessary for a  suit to be ready for hearing had been fulfilled.

7. Having considered the arguments  of both sides, I am persuaded by the submissions of the plaintiff that the dismissal order should be reviewed and set aside.

8. Consequently the motion is allowed as prayed.

Dated, Signed and Delivered in open court this 10th day of November, 2017.

J. K. SERGON

JUDGE

In the presence of:

....................................for the Plaintiff

....................................for the Defendant