Gicheru & another v Ongonga [2023] KEELC 38 (KLR)

Gicheru & another v Ongonga (Cause 435 of 2015) [2023] KEELC 38 (KLR) (18 January 2023) (Ruling)

Neutral citation: [2023] KEELC 38 (KLR)

Republic of Kenya

In the Environment and Land Court at Nairobi

Cause 435 of 2015

JO Mboya, J

January 18, 2023

Between

Chrysanthus M Gicheru

1st Plaintiff

Alice Mukinya Stanley

2nd Plaintiff

and

Hudson Ogechi Ongonga

Defendant

Ruling

1. Vide Notice of Motion Application dated the 22nd of April 2022, the Plaintiffs/Applicants herein has approached the Honourable court seeking for the following Reliefs;i.That dismissal orders entered herein on the February 17, 2022 be reviewed, set aside and or varied, and the suit be reinstated for hearing on merit.ii.That costs be in the cause.

2. The instant application is premised and anchored on the grounds which are contained and enumerated at the foot thereof. Besides, the application is further supported by the affidavit sworn by Njugi B. Gachogo, who is the advocate on record for the Plaintiffs/Applicants.

3. It is imperative to point out that though the subject application was duly served upon the Defendant/Respondent, same neither filed a Replying affidavit nor Grounds of opposition.

4. Be that as it may, it is still incumbent upon the Plaintiffs/Applicants to prosecute the instant application and to persuade the court that same ought to be granted on the basis of the applicable and obtaining provisions of the law.

5. Moving on, it is also appropriate to underscore that when the subject application came up for hearing, counsel for the Plaintiffs/Applicants sought to file written submissions.

6. Consequently and on the basis of the request by counsel for the Plaintiffs/Applicants, the court granted liberty to have the subject application canvased and disposed of by way of written submissions.

7. For completeness of record, I beg to state that indeed counsel for the Plaintiffs/Applicants filed written submissions dated the 29th November 2022.

Submissions By The Parties: a. PLaintiff’s/applicant’s Submissions: 8. The Applicants herein filed written submissions dated the November 29, 2022 and same have highlighted and amplified three salient and pertinent issues for due consideration.

9. Firstly, counsel for the Applicants has submitted that the honourable court is seized and vested with the requisite jurisdiction to entertain and adjudicate upon the subject application.

10. In this regard, counsel for the Applicants has invited the court to take cognizance of the provisions of Order 17 Rule 2 and Order 45 Rule 1 of the Civil Procedure Rules 2010.

11. Additionally, counsel for the Applicants has contended that to the extent that the impugned orders were taken and made without notice to and involvement of the Applicants, the court is seized of the requisite discretion to set aside, vary or discharge the orders, which were made on the February 17, 2022. 1.To underscore the extent and scope of discretion possessed by the court, learned counsel for the Applicants has invited the court to take cognizance of the holdings in various cases, inter-alia, Shah v Mbogo & another (1967) EA 116, Patel v East African Cargo Handling Services Ltd (1974)EA at page 75, Chemwollo & another v Augustine Kubende (1986) eKLR and CMC Holdings Ltd v James Mumo Nzioka (2004) KLR 173. 2.Secondly, counsel for the Applicants submitted that at the time when the court dismissed the suit for want of prosecution, there was a pending interlocutory application filed by counsel for the Applicants and in respect of which same had sought leave to cease acting.3. Premised on the foregoing, counsel for the Applicants has therefore submitted that the dismissal of the Applicants suit during the pendency of the application to cease acting, constitutes and amounts to an error or mistake on the face of record.4. Based on the foregoing, learned counsel for the Applicants has submitted that the impugned dismissal of the suit, therefore ought to be vacated or reviewed.5. Thirdly, counsel for the Applicants has submitted that the dismissal of the suit for want of prosecution has condemned the Applicants without being heard and hence the impugned dismissal constitutes an infringement of the Applicants Fundamental rights to Fair Hearing.6. Whilst amplifying the need to afford the Applicants fair hearing, counsel has drawn the attention of the Honourable court to the Rule of Natural Justice and need to ensure that all disputes, where appropriate, are determined on the merits.7. To amplify the submissions premised on fair hearing and rule of natural justice, counsel for the Applicants has invited the court to take cognizance of various cases inter-alia Richard Ncharpi Leiyago v IEBC & 2others (2013)eKLR, Wachira Karani v Bildad Wachira (2016)eKLR and David Oloo Onyango v Attorney General (1987)eKLR.8. Finally, counsel for the Applicants has submitted that it is incumbent upon the court to ensure that the parties appearing before same are afforded reasonable opportunity to be heard. Consequently and in respect the subject matter, counsel has underscored that in respect of the subject matter, it would be in the interest of justice that the impugned dismissal be vacated and discharged.9. Premised on the foregoing submissions, counsel for the Applicants has impressed upon the court to grant the subject application and essentially, to reinstate the Applicant’s suit for hearing and determination on the merits.

Defendant/Respondent Submissions: 10. It was pointed out elsewhere hereinbefore that though the defendant/respondent Was duly served with the application, same did not file any responses thereto.

11. Similarly, it s also imperative to note and underscore that the Defendant has also not filed any written submissions.

12. For the avoidance of doubt, the only written submissions on record are the ones filed by the Applicants and whose details have been highlighted in the preceding segment.

Issues For Determination: 13. Having considered the Notice of Motion Application herein, together with the supporting affidavit and having duly considered the written submissions filed by the Applicants, the following issues do arise and are worthy of determination;i.Whether this Honourable court is seized and vested with the requisite Jurisdiction to entertain the subject application and to grant the orders sought.ii.Whether there was an Error or Mistake on the face of record and if so, whether such error would warrant the review of the Dismissal Orders.iii.Whether the Plaintiffs/Applicants have been condemned unheard and thus deprived of a right to Fair Hearing.

Analysis And Determination Issue Number 1; Whether this Honourable court is seized and vested with the requisite Jurisdiction to entertain the subject Application and to grant the orders sought. 14. The issue herein touches on and concerns the question of jurisdiction. Consequently, it is imperative to ascertain and authenticate the importance and significance of jurisdiction of the Court before entertaining a particular matter.

15. Needless to point out that jurisdiction is the hallmark and touchstone upon which all courts derive the authority and competence to hear and determine any matter/suit filed before same.

16. In the premises, where the Jurisdiction of the court is questioned or doubted, it behooves the court to interrogate and ascertain whether same is seized of the requisite jurisdiction, before venturing to engage with the merits of the dispute beforehand.

17. To underscore the centrality of Jurisdiction, it is appropriate to take cognizance of the holding in the case of Owners of Motor Vessel Lilian S v Caltex (K) Ltd (1989)eKLR, where the Court of Appeal, per Nyarangi J A, stated and observed as hereunder;“Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law down tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction. Before I part with this aspect of the appeal, I refer to the following passage which will show that what I have already said is consistent with authority:“By jurisdiction is meant the authority which a court as to decide matters that are litigated before it or to take cognisance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter, or commission under which the court is constituted, and may be extended or restricted by the like means. If no restriction or limit is imposed the jurisdiction is said to be unlimited. A limitation may be either as to the kind and nature of the actions and matters of which the particular court has cognisance, or as to the area over which the jurisdiction shall extend, or it may partake of both these characteristics. If the jurisdiction of an inferior court or tribunal (including an arbitrator) depends on the existence of a particular state of facts, the court or tribunal must inquire into the existence of the facts in order to decide whether it has jurisdiction; but, except where the court or tribunal has been given power to determine conclusively whether the facts exist. Where a court takes it upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgement is given”

18. Additionally, the significance of Jurisdiction was also re-visited and calibrated upon by the Court of Appeal in the case of Phoenix of E.A. Assurance Company Limited v S. M. Thiga t/a Newspaper Service [2019] eKLR, where the court stated and observed as hereunder;1. At the heart of this appeal is the issue of jurisdiction. It is a truism jurisdiction is everything and is what gives a court or a tribunal the power, authority and legitimacy to entertain any matter before it. What is jurisdiction?2. In common English parlance, ‘Jurisdiction’ denotes the authority or power to hear and determine judicial disputes, or to even take cognizance of the same. This definition clearly shows that before a court can be seized of a matter, it must satisfy itself that it has authority to hear it and make a determination. If a court therefore proceeds to hear a dispute without jurisdiction, then the result will be a nullity ab initio and any determination made by such court will be amenable to being set aside ex debito justitiae. It is for this reason that this Court has to deal with this appeal first as the result directly impacts Civil Appeal No.6 of 2018 which is related to this one. We shall advert to this issue later. In the meantime, it is important to put this appeal in context.

19. Given the significance and importance of jurisdiction in the determination of disputes/matters before the court, it is now appropriate to ascertain whether this court is seized of the requisite jurisdiction to entertain and (sic) grant the orders sought.

20. However, before endeavoring to answer the question of jurisdiction, it is appropriate to recall and restate the background facts/circumstances preceding and culminating into the dismissal of the suit.

21. Suffice it point out that the subject suit was fixed and listed for hearing on the February 17, 2022. For clarity, the Hearing Date was fixed in the presence of Counsel for the Plaintiffs/ Applicants.

22. On the other hand, when the matter came up for hearing on the February 17, 2022, the Plaintiffs/Applicants’ herein were duly represented by learned counsel Ms. Kimuyu, who was holding brief for Mr. B G Njugi, Advocate, for the Plaintiffs.

23. In any event and when the suit was called out during the call over, learned counsel for the Plaintiffs applied for adjournment on various reasons. In this regard, it would be important to reproduce the reasons that were advanced to support the application for adjournment.

24. For coherence, learned counsel Ms. Kimuyu submitted as hereunder;“The matter is fixed for hearing of the main suit. However, we were unable to reach the Plaintiffs in the matter and hence I don’t have any witness in court. In this regard, I am seeking for adjournment.Besides, we seek to file and serve and application to cease acting in the matter on account that we have lost touch/contact with the Plaintiffs. I seek the courts indulgence”.

25. Having entertained and listened to the application for adjournment by counsel for the Plaintiffs, the court was obliged and obligated to render a ruling.

26. Needless to state that indeed the court rendered a ruling wherein the court stated as hereunder;i.The matter was fixed for hearing and it was the obligation of the counsel to alert and or inform the Plaintiffs of the status of the case and in particular the scheduled hearing date.ii.On the other hand, the case belongs to the Plaintiffs and thus the Plaintiffs are also obligated to follow up on their case and to be sure, the Plaintiffs must be proactive in pursuit of the hearing and conclusion of the matter.iii.Now that the Plaintiffs are not in court and counsel says that same have not been able to reach the Plaintiffs, I find no basis to warrant the exercise of the courts discretion in favor of an adjournment.iv.In the premises, the application for adjournment be and is hereby declined.

27. Following the delivery of the ruling, whose details have been alluded to in the preceding paragraph, learned counsel M.s Kimuyu then informed the court that she had no evidence to offer on behalf of the Plaintiffs.

28. Informed by the submissions of counsel for the Plaintiffs that same had no evidence to offer, the court proceeded to and made a further ruling wherein the court observed as hereunder;“There being no evidence and the Plaintiffs having been afforded the opportunity to tender evidence, the matter be and is hereby dismissed for want of prosecution under the provision of Order 17 Rule 4 of the Civil Procedure Rules. No orders as to costs”.

29. For coherence, the foregoing reproduction denotes the circumstances belying the dismissal of the Plaintiff’s suit for want of prosecution.

30. It is the said dismissal of the Plaintiff’s suit for want of prosecution, which is now sought to be set aside, varied or discharged.

31. In my humble view, the dismissal of the Plaintiffs/Applicant’s suit for want of prosecution, denotes a Judgment in favor of the Defendant. In this regard, it is safe and sound to state that indeed the dismissal constituted a judgment in favor of the adverse party, namely the Defendant, who had been impleaded.

32. To fortify the holding that the dismissal of a suit for want of prosecution constitute a Judgment in favor of adverse Party, it is appropriate to restate and reiterate the holding of the Court of Appeal in the case of Njue Ngai v Ephantus Njiru Ngai &another (2016) eKLR, where the Honourable Court of Appeal stated and observed as hereunder;“Another issue may arise as to whether a dismissal of a suit for non-attendance of the plaintiff or for want of prosecution, amounts to a judgment in that suit. The predecessor of this Court answered that issue in the affirmative when considering the dismissal of a suit for failure by the plaintiff to attend court in the case of Peter Ngome vs Plantex Company Limited [1983] eKLR stating:-Rule 4(1) does not say “judgment shall be entered for the defendant or against the plaintiff”. It uses the word “dismissed”. The Civil Procedure Act does not define the word “judgment”. According to Jowitt’s Dictionary of English Law 2nd ed p 1025:Judgement is a judicial determination; the decision of a court; the decision or sentence of a court on the main question in a proceeding or/one of the questions, if there are several.”Mulla’s Indian Civil Procedure Code, 13th Ed Vol 1 p 798 says: “Judgment” means the statement given by the judge on the grounds of a decree or order,” “Judgment – in England, the word judgment is generally used in the same sense as decree in this code”.In my view, a judgment is a judicial determination or decision of a court on the main question(s) in a proceeding and includes a dismissal of the proceedings or a suit under Rule 4(1) of Order 1XB or under any other provision of law. A dismissal of a suit, under Rule 4(1) is a judgment for the defendant against the plaintiff. An application under Rule 3 of Order 1XB includes application to set aside a dismissal. This must be so because, when neither party attends court on the day fixed for hearing, after the suit has been called on for hearing outside the court, the court may dismiss the suit, and, in that event, either party may apply under Rule 8 to have the dismissal set aside or the plaintiff may bring a fresh suit subject to any law of limitation of actions: See Rule 7(1) of Order 1XB. This, I think, clearly shows that Rule 7(2) was intended to bar a plaintiff whose suit has been dismissed under Rule 4(1), only from bringing a fresh suit. That provision does not bar such a plaintiff from applying for the dismissal to be set aside under Rule 8”. [Emphasis added]

33. Secondly, it is appropriate to recall that the impugned dismissal for want of prosecution was indeed taken and made in the presence of counsel for the Plaintiffs/Applicants. For clarity, the counsel for the Plaintiffs/Applicants was a recognized agent of the Plaintiffs/Applicant for all intents and purposes. See Order 9 Rule 1 and 2 of the Civil procedure rules, 2010.

34. To the extent that the dismissal for want of prosecution was taken or done in the presence of the counsel for the Plaintiffs/Applicants, it is my humble view that such a dismissal was done with the knowledge and participation of the recognized agent.

35. Consequently, I dare wish to add that the impugned dismissal for want of prosecution, which was done in the presence of the Plaintiffs/Applicants duly recognized agents denotes a final Judgment against the Plaintiffs/Applicants.

36. To my mind, such a dismissal for want of prosecution, which is made in the presence of counsel and in accordance with Order 17 Rule 4 of the Civil Procedure Rules, 2010, cannot be set aside varied or discharged by the same court.

37. Furthermore, I am of the view that if a Party whose suit was dismissed for want of prosecution under Order 17 Rule 4 of the Civil Procedure Rules, 2010 is aggrieved, then such a party has a recourse vide appeal (sic) to the court of appeal or such other appellate court, subject to the provisions of theConstitution of Kenya, 2010 .

38. Be that as it may, I also wish to add that I have previously dealt with a similar situation and held that the provisions of Order 17 Rule 4 are not amenable to variation or setting aside in the manner prescribed vide Order 12 Rule 7 of the Civil Procedure Rules, 2010.

39. In this regard, it is appropriate to restate and reiterate this courts previous decision in the case of Homeboyz Entertainment Limited v Secretary National Building Inspectorate & 2 others [2022] eKLR, where the court stated as hereunder;‘My reading of the foregoing provision of the law [Order 17 Rule 4 of the Civil Procedure rules, 2010], suggest and/or connotes that where a Party has been afforded and/or availed sufficient and/or reasonable opportunity to tender evidence, but same has failed to do so, the court is at liberty to determine the suit forthwith. It is apparent, that by the usage of the Word; by determining the suit, the court is granted the liberty to either enter judgment, where there is a limb of the claim that is admitted by the adverse party or better still dismiss the suit as against the Defendant.Nevertheless, it is imperative to note that even where the suit is dismissed for want of prosecution, such a dismissal constitutes or amounts to a Judgment in favour of the Defendant.Whereas, a dismissal which is done in the absence of the Parties or one of the Parties, is amenable to be set aside pursuant to an application under Order 12 Rule 7 of the Civil Procedure Rules 2010, a Dismissal for want of prosecution, made and/or undertaken in the presence of the Parties leads to an Inter-Partes judgment, in the nature of a Dismissal and same does not lend itself to setting aside. In the circumstances, it is my humble position that having entertained arguments from both the Plaintiffs and the Defendants, on the 16th December 2021, the resultant decision is one that can only be Appealed against and not otherwise.

40. Additionally, this court also had a second opportunity to consider the import and implication of the provisions of Order 17 Rule 4 of the Civil Procedure Rules, 2010. For clarity, this was in respect of the case of China Bente Industry (K) Ltd v Seline J Comen & another [2022] eKLR, wherein the court reiterated the same position.

41. Barring a contrary decision by the Court of Appeal, (none of which has been brought to my attention) I hold and maintain the same position. In this regard, it is my humble albeit considered view that this court is not seized of the requisite Jurisdiction to re-engage with the subject suit in the manner sought.

Issue Number 2; Whether there was an Error or Mistake on the face of record and if so, whether such error would warrant the review of the Dismissal Order. 42. Learned counsel for the Plaintiffs/Applicants has contended and submitted that the dismissal of the suit for want of prosecution was undertaken and carried out during the pendency of an interlocutory application.

43. Further, counsel has submitted that by the time the suit was dismissed for want of prosecution, same had filed an application dated the 15th February 2022, albeit filed on the 16th February 2022.

44. On the other hand, counsel has added that the said application, which was filed on the February 16, 2022 and which was seeking leave to cease acting for the Plaintiffs/Applicants, had neither been heard nor disposed of.

45. In the premises, learned counsel has contended that the dismissal of the suit for want of prosecution, during the lifetime and subsistence of the said interlocutory application, constitutes an Error or Mistake on the face of record.

46. My answer to the submissions by learned counsel for the Applicants is two-fold. Firstly, the advocate who appeared before the court made very clear and unambiguous submissions, whose details were reproduced herein before.

47. For the avoidance of doubt, the counsel who was duly retained and held brief for counsel for the Plaintiffs pointed out that same was seeking time to file and serve an application to cease acting in the matter on account that same had lost touch/contact with the Plaintiff.

48. Suffice it to point out that learned counsel, who made the said submissions and representations before the court has not recanted the submissions in question. Consequently and in the circumstances, it is my finding and holding that the decision and orders of the court that were made on the 17th February 2022, were premised on the accurate and actual representations placed before the court by and on behalf of the Plaintiffs/applicants.

49. Secondly, it is common knowledge that an advocate who has been appointed by and on behalf of a Party remains on record and is deemed to be the advocate for the Party until and unless same is duly discharged vide an order of the court.

50. To this end, it is imperative to take cognizance of the provisions of Order 9 Rule 12 and 13 of the Civil Procedure Rules, 2010.

51. For convenience, the said provisions are reproduced as hereunder;12. Removal of advocate from record at instance of another party [Order 9, rule 12. ](1)Where an advocate who has acted for a party in a cause or matter has died or become bankrupt or cannot be found or has failed to take out a practising certificate or has been struck off the roll of advocates, or is otherwise unable to act as an advocate, and the party has not been given notice of change of advocate or notice of intention to act in person in accordance with this Order, any other party to the cause or matter may, on notice to be served on the first-named party personally or by prepaid post letter addressed to his last-known place of address, unless the Court otherwise directs, apply to the Court for an order declaring that the advocate has ceased to be the advocate acting for the first-named party in the cause or matter, and the Court may make an order accordingly.(2)Where the order is made, the party applying for the order shall serve on every other party to the cause or matter (not being a party in default as to entry of appearance) a copy of the said order and procure the order to be entered in the appropriate court, and also leave at the appropriate court a certificate signed by the applicant or his advocate that the order has been duly served as aforesaid; and thereafter, unless and until the first-named party either appoints another advocate or else gives such an address for service as is required of a party acting in person, and complies with this Order relating to notice of appointment of an advocate or notice of intention to act in person, any document may be served on the party so in default by being filed in the appropriate court.(3)An order made under this rule shall not effect the rights of the advocate and the party for whom he acted as between themselves.

13. Withdrawal of advocate who has ceased to act for a party [order 9, rule 13. ](1)Where an advocate who has acted for a party in a cause or matter has ceased so to act and the party has not given notice of change in accordance with this Order, the advocate may on notice to be served on the party personally or by prepaid post letter addressed to his last- known place of address, unless the court otherwise directs, apply to the court by summons in chambers for an order to the effect that the advocate has ceased to be the advocate acting for the party in the cause or matter, and the court may make an order accordingly:Provided that, unless and until the advocate has—(a)served on every party to the cause or matter (not being a party in default as to entry of appearance) or served on such parties as the court may direct a copy of the said order; and(b)procured the order to be entered in the appropriate court; and(c)been duly served as aforesaid, he shall (subject to this Order) be considered the advocate of the party to the final conclusion of the cause or matter including any review or appeal.(2)From and after the time when the order has been entered in the appropriate court, any document may be served on the party to whom the order relates by being filed in the appropriate court, unless and until that party either appoints another advocate or else gives such an address for service as is required of a party acting in person, and also complies with this Order relating to notice of appointment of an advocate or notice of intention to act in person.(3)Any order made under this rule shall not affect the rights of the advocate and the party as between themselves.

52. In my humble view, by the time the Plaintiffs/Applicants suit was dismissed for want of prosecution, the firm of M/s B. G Njugi & Company Advocates were still on record for the Plaintiffs/Applicants.

53. In any event, the record shows that the impugned application for cessation to act for the Plaintiffs/Applicants was dealt with and disposed of long after the suit had been dismissed for want of prosecution.

54. In the premises, it is my finding and holding that there was no error or mistake on the face of record when the Plaintiffs/Applicants suit was dismissed for want of prosecution. Simply put, the Plaintiffs/ Applicants were duly represented by a duly authorized and recognized agent.

55. Notwithstanding the foregoing, it is appropriate and imperative to recall and reiterate that the counsel for the Plaintiffs/Applicants who appeared before the court did not ventilate or seek liberty of the court to prosecute the impugned application beforehand.

56. Consequently, there is no gainsaying that up to and including the time when the impugned dismissal orders were made, learned counsel remained on record and was thus seized of the requisite instruction to act for the Plaintiffs in the matter.

Issue Number 3; Whether the Plaintiffs/Applicants have been condemned unheard and thus deprived of a right to Fair Hearing. 57. Other than the issues which have been addressed and disposed of hereinbefore, learned counsel for the Applicants has also contended that the dismissal of the Applicant’s suit for want of prosecution has condemned the Applicants without being heard.

58. Additionally, counsel has also contended that the impugned dismissal, has also infringed upon and violated the Applicants Fundamental Right to fair hearing.

59. Premised on the foregoing submissions, counsel has invited the Honourable court to reconsider the dismissal and thereafter to afford the Applicants an opportunity to be heard on merits.

60. Despite the contentions by counsel for the Applicants, I beg to point out that the cardinal principle pertaining to Fair Hearing and the Rule of Natural ustice was laid out and underscored in Halsbury’s Law of England, 4th Edition, Vol 1, page 90 paragraph 74 as hereunder;“The rule that no man shall be condemned unless he has been given prior notice of the allegations against him and a fair opportunity to be heard is a cardinal principle of justice.

61. As pertains to the subject matter, it is imperative to state and underscore that indeed the Plaintiffs, who were the ones who filed the subject suit, were afforded a fair opportunity to be heard in respect of the subject matter but same spurned the opportunity.

62. In my humble view, neither the Plaintiffs nor their duly recognized agents can now be heard to contend or better still, to complain that same were condemned unheard.

63. At any rate, it is imperative to state and underscore that all litigants, the Plaintiffs/ Applicants’ not excepted, who file matters before the court must be prepared to actively prosecute the matter/suit before the court. In this regard, Article 159(2) (b) of theConstitution 2010 is paramount.

64. Before departing from the subject issue, it is appropriate to take cognizance of the holding of the Court of appeal in the case of Said Sweilem Gheithan Saanum v b Commissioner Of Lands (being sued through Attorney General) & 5 others [2015] eKLR, where the Court Of Appeal stated as hereunder;“Justice shall not be delayed” is no longer a mere legal maxim in Kenya but a Cconstitutional Principle that emphasizes the duty of the advocates, litigants and other court users to assist the court to ensure the timely and efficient disposal of cases. The principles which are reiterated by sections 1A and 1B of the Civil Procedure Act are intended to facilitate the just, expeditious, proportionate and affordable resolution of disputes.The principle cannot therefore be a panacea which heals every sore in litigation, neither is it a licence to parties to ignore or contravene the law and rules of procedure. We agree, with respect, with the learned Judge’s conclusion that the suit in the High Court was not properly handled by the appellant’s advocate. The court cannot be invited to turn a blind eye in the face of such inordinate delay and in the absence of sufficient explanation.Likewise it cannot be fashionable for parties to blame their advocate and disclaim that the mistakes made by their advocates, who they have themselves appointed cannot be visited upon them.

65. In view of the foregoing observation, it is my humble view that the Plaintiffs herein cannot legitimately be heard to contend/ complain that same were not heard or worse still, that same have been condemned unheard.

Final Disposition: 66. Having reviewed, evaluated and analyzed the topical issues and perspectives that arose from the application and the submissions on behalf of the Plaintiffs/ Applicants, I come to the conclusion that the instant application is not meritorious.

67. Consequently and even though the Defendant/Respondent did not file any responses thereto, it is my finding that the application does not warrant being granted. For coherence, the Application, was premature and bad in law.

68. In a nutshell, the application dated the April 22, 2022, be and is hereby Dismissed albeit with no orders as to costs.

69. It so ordered.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 18TH DAY OF JANUARY 2023. OGUTTU MBOYA,JUDGE.In the Presence of;Benson - Court Assistant.N/A for the Plaintiffs/ApplicantsN/A for the Defendant/Respondent