Josephson Gakuru Gachoki & 23 others v James Ndege Njuguna & 8 others [2019] KEELC 2460 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT KERUGOYA

ELC CASE NO. 89 OF 2014

JOSEPHSON GAKURU GACHOKI & 23 OTHERS.......PLAINTIFFS

VERSUS

JAMES NDEGE NJUGUNA & 8 OTHERS....................DEFENDANTS

RULING

What is before me is a Notice of Motion application dated 24th  October 2018 brought under Order 12 Rule 7, 51 Rule 1 CPR, Section 1A, 1B & 3A CPA.  The applicant is seeking to set aside orders made by this Honourable Court on 25th July 2018 dismissing this suit for want of prosecution.  The applicant also seeks to reinstate the suit for hearing and determination on merit.  The application is premised on three grounds shown on the face of that application supported by the affidavit of George Morara Gori, sworn the same date.  In his supporting affidavit, Mr. George Morara Gori deponed that when this matter came up for Notice to show cause on 25th July 2018, his firm was not on record for the plaintiffs.  He stated that they came on record on 9th August 2018 when they filed a Notice of Appointment of Advocates.  He deponed that the hitherto firm of J. Gacheru & Co. Advocates who were on record on 25th July 2018 had not informed the plaintiffs that the matter was coming up for Notice to show cause on the 25th July 2018.  He deponed that failure by the firm of J. Gacheru & Co. Advocates to attend Court during the hearing of the Notice to show cause on 25th July 2018 should not be visited on the plaintiffs and that this Court is enjoined not to drive away litigants from the seat of justice.  In conclusion, the applicant argued that the respondent will not suffer any prejudice which cannot be remedied by an award of costs.

In opposing the said application, the 9th defendant through Wawira Gichobi Advocates filed a replying affidavit stating that when this matter came up for Notice to show cause on the 25th July 2018, the counsel holding brief for the firm of J. Gacheru & Co. Advocates who were on record for the plaintiff told the Court that her instructions were that Mr. Gacheru advocate intended to withdraw the suit.  The learned counsel stated that the plaintiffs have not explained why they had not fixed this suit for hearing since 6th December 2016 until 25th July 2018 when it was dismissed.  He stated that the plaintiffs cannot hide behind their former advocates in action for failing to take steps to prosecute their case.  The 1st defendant with the authority of 2nd and 3rd defendants also filed a replying affidavit opposing this application stating that when this matter came up for Notice to show cause on 25th July 2018, none of the plaintiffs attended Court to give any explanation why they failed to prosecute this case since 6th December 2016.  The 1st, 2nd and 3rd defendants also contend that it is now more than three months after the case was dismissed before filing the instant application.  The plaintiffs/applicants have been indolent and have slept on their rights and that equity aids the vigilant and not the indolent.

The 4th, 5th, 6th, 7th and 8th defendants also opposed this application vide a replying affidavit sworn by Eleneo Muchira in which they stated that the application for reinstating this suit has been brought with inordinate delay which has not been explained since the dismissal was on 20th July 2018 and this application was brought on 24th October 2018, more than three months after the dismissal.  The 4th, 5th, 6th, 7th and 8th respondents also stated that if the acts of omission by the applicants advocate to attend Court should not be visited upon the applicants, then the respondents should not also be visited for the same.

They argued that the delay of more than one (1) year without prosecuting this has not been explained and that this Court cannot exercise its discretion without been given the reasons for which the dismissal was made.  They sought to have the application dismissed.

I have considered the arguments for and against the exercise of this Court’s discretion to reinstate this suit.  I have also considered the submissions by counsel for the applicants and the rival submissions by counsels for the respondents. From the proceedings of the Court, the plaintiffs were issued with a Notice to show cause why this suit could not be dismissed for want of prosecution under Order 17 Rule 2 (1) CPR which reads as follows:

“Order 17 Rule 2 (1)

In any suit in which no application has been made or step taken by either party for one year, the Court may give notice in writing to the parties to show cause why the suit should not be dismissed, and if cause Is not shown to its satisfaction may dismiss the suit”.

The Court record indicates that the last Court action in this matter was on 6th December 2016.   Between the said date and 25th July 2018, it is more than one year. The application is supported by an affidavit sworn by one George Morara Gori who is an advocate instructed by the plaintiffs/applicants to come on record in place of the hitherto firm of J. Gacheru & Co. Advocates.  The said advocate admits that the firm of J. Gacheru & Co. Advocates were served with the Notice to show cause but they failed to notify the plaintiffs.  The law requires an explanation for the plaintiffs why the suit was not prosecuted for more than one year.  The change of advocates and attempting to shift blame to the plaintiffs hitherto advocates does not substitute the requirement that the plaintiff gives explanation for the delay to the satisfaction of the Court.   To my mind, the plaintiff has not given satisfactory explanation for failing to prosecute the suit for more than one year. The case belongs to the parties and not advocates and the parties must instruct their advocates to move the Court to have the cases heard expeditiously as required by law.  A change of advocate cannot remove that obligation from the plaintiff without being given satisfactory explanation for not prosecuting this case within the stipulated period under the law.  In the case of Rajesh Rugharis Vs Fifty Investments Limited & another (2016) e K.L.R, the Court of Appeal held as follows:

“….... the above line of thinking no longer holds water and in my view, it is the duty and right of any litigant to put pressure on his counsel to have the suit prosecuted earliest possible.  If counsel can’t rise to the task, the plaintiff has the power to dismiss such an advocate and get the services of another.  It must always be remembered it is the plaintiffs suit not the advocates which risks dismissal for want of prosecution.  Put differently, it is not acceptable for a plaintiff to hide his counsels inaction, for such a defence is tantamount to an admission or collusion with his advocate, not to prosecute the suit as required by law”.

The plaintiff has admitted that this case was not prosecuted from 6th December until when the Court issued the Notice to show cause why the suit should not be dismissed.   Until now, no explanation has been given by the plaintiff why the suit was not prosecuted.  The plaintiff should give an explanation but not to hide under his hitherto lawyers.

I find this application lacking merit and the same is hereby dismissed with costs to the respondents.

READ and SIGNED in open Court at Kerugoya this 28th day of June, 2019.

E.C. CHERONO

JUDGE

28TH JUNE, 2019

In the presence of:

1. Mr. Gori for Plaintiffs/Applicants

2. Defendant/Advocate – absent

3. Court clerk - Mbogo