Ken Mutembei (Suing as the legal representative of the estate of Jacinta Mwingwa) v Jacob Mukaria,Couny Government of Meru, Elijah Muriira Rukaria, Joseph Mwongera Rukaria, Joshua Mworia Rukaria & Timothy Kiogora [2022] KEHC 2266 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MERU

(CORAM: CHERERE-J)

CIVIL APPEAL NO. 130 OF 2018

BETWEEN

KEN MUTEMBEI (Suing as the legal representative of the estate

of JACINTA MWINGWA) .........................................APPELLANT

AND

JACOB MUKARIA..........................................1ST RESPONDENT

COUNY GOVERNMENT OF MERU......... 2ND RESPONDENT

ELIJAH MURIIRA RUKARIA ....................3RD RESPONDENT

JOSEPH MWONGERA RUKARIA .......... 4TH RESPONDENT

JOSHUA MWORIA RUKARIA .................5TH RESPONDENT

TIMOTHY KIOGORA .............................. 6TH RESPONDENT

(Being an appeal from the ruling in MERU CIVIL CASE NO. CMCC NO. 148 of 2010 by Hon. S. Abuya (SPM) on 14th November 2018)

JUDGMENT

1. MERU CMCC NO. 148 of 2010 which is the subject of this appeal was filed on 26th March, 2010.

2. On 22nd October, 2013, the Applicant was granted 30 days to move the court appropriately to substitute the 2nd Defendant that had ceased to exist after the 04th March, 2013 with a proviso that the suit would stand dismissed if the court was not moved as directed.

3. The court record reveals that the Appellant did not comply with the court orders of 22nd October, 2013.

4. Exactly 4 years later and more particularly on 23rd August, 2017, Mrs. Kaume advocate for the Appellant informed the court that she wished to file a formal application to amend the Plaint. The court fixed the matter for mention on 27th September, 2017 to confirm filing of the application to amend the plaint.

5. On 27th September, 2017, Appellant’s counsel did not attend court and it was directed that the matter be fixed for hearing within 14 days’ failure to which the suit would stand dismissed.

6. The suit was dismissed as directed for failure by Appellant to fix it for hearing. Exactly 6 months later and more particularly on 14th March, 2018, Appellant filed an application to reinstate the suit. Application was heard on   23rd August, 2017 and was dismissed by a ruling dated 30th April, 2018.

Appeal

7. Dissatisfied with the trial magistrate’s ruling declining to reinstate the suit, Appellant now appeals mainly on the ground that the dismissal order occasioned miscarriage of justice and failed to consider the nature of the case. Reliance was placed on Mwangi S. Kimenyi V Attorney General & Anor [2014] eKLR.

Analysis and determination

8. I have considered the appeal in the light of the record of appeal and submissions filed on behalf of the Appellant.

9. It is evident from the court record that Mrs. Kaume advocate for the Appellant was in court on 23rd August, 2017 when the court fixed the matter for mention on 27th September, 2017 to confirm filing of the application to amend the plaint.

10. No explanation was given by counsel for her failure to attend court on  23rd August, 2017, or for her failure to at the least peruse the court file to find out what orders the court had issued in her absence.

11.  Mrs. Kaume advocate for the Appellant in her affidavit sworn on 12th March, 2018 deliberately failed to disclose when she became aware of the dismissal order and thereby failed to explain the 6 months’ delay from the date of dismissal to the date the application to reinstate the suit was filed.

12. I have considered whether the advocate’s mistake should be visited on the Applicant. In Lucy Bosire v Kehancha Div. Land Dispute tribunal & 2 othersOdunga J remarked that:

“However, it is not in every case that a mistake committed by an Advocate would be a ground for setting aside orders of the Court....

The Judge went on to quote Kimaru J. in Savings and Loans Limited -vs- Susan Wanjiru Muritu Nairobi (Milimani) HCCS No.397 of 2002 where he expressed himself as follows: -

Whereas it would constitute a valid excuse for the Defendant to claim that she had been let down by her former Advocates failure to attend Court on the date the application was fixed for hearing, it is trite that a Case belongs to a litigant and not to her Advocate.  A litigant has a duty to pursue the prosecution of his or her Case.  The Court cannot set aside dismissal of a suit on the sole ground of a mistake by Counsel of the litigant on account of such Advocate’s failure to attend Court.  It is the duty of the litigant to constantly check with her advocate the progress of her case.

13. In the present case, it is apparent that had the Appellant been a diligent litigant, he would have been aware of the orders granted by court  non-compliance of which determined the dismissal order issued by the court.

14. As at the time the suit was dismissed in 2017, it had been in court for 7 years and the plaint had neither been amended nor any action to prosecute the suit put in place.

15. I fully agree with the above holding of Kimaru J. in the Savings and Loans Limited -vs- Susan Wanjiru Muritu Nairobi (Milimani) HCCS No.397 of 2002that:  It is not enough for a party to simply blame the Advocate but must show tangible steps taken by him in following up his matter’’.

16. I have considered the impugned ruling and I am persuaded that the trial court rightly found that Appellant’s counsel had not explained to the satisfaction of the court why she did not attend court on 27th September, 2017 or why the application to reinstate the suit was not filed timeously.

17. In the end and for the reasons given on the foregoing analysis, I have come to the conclusion that the Appellant has not given sufficient reasons for this court to interfere with the trial court’s decision Ultimately, I find that this appeal has no merit and it is dismissed.

DATED AT MERU THIS  10TH DAY OF FEBRUARY,  2022

WAMAE. T. W. CHERERE

JUDGE

Court Assistant    -Morris Kinoti

For Appellant      - N/A for M.G.Kaume & Company Advocates

Respondents         -  N/A