Margaret Wangui Nderu v Alice Waceke Ng’ang’a [2017] KEHC 3791 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYAAT NAIROBI

CIVIL SUIT NO. 624 OF 2009

MARGARET WANGUI NDERU..........................................PLAINTIFF

-VERSUS-

ALICE WACEKE NG’ANG’A...........................................DEFENDANT

RULING

1. The Plaintiff moved this court under Order 45, Rule 1 of the Civil Procedure Rules, 2010 through a Notice of Motion dated 24th November, 2016 and filed on 30th March, 2017 seeking orders that;

(a) The order made on 22nd June, 2016 dismissing this suit for want of prosecution be reviewed and set aside;

(b) The suit be given the earliest possible date; and

(c) The costs of the suit be provided for

2. The grounds in support of the application as stated on the body of the application and the Supporting Affidavit of the Plaintiff are that the Plaintiff has been eager to have her suit heard and determined but the Court file has been missing.  That the last time the case came up for hearing was on 9th December, 2014, when the Defendant’s Counsel adjourned the matter to seek instructions as they had just been appointed and the case was adjourned with cost to the Plaintiff. Annexed to the Affidavit are invitation letters to fix the case for hearing.  The Plaintiff states that after the invitation letter of 12th March, 2015 which was received by the Defendants’ Advocate, the court file went missing.

3. The Plaintiff further states that on 3rd July, 2015 her advocate wrote a letter to the Deputy Registrar seeking assistance in tracing the file but no response was given. The said letter is as well annexed to the affidavit. It is also deponed in the Supporting Affidavit that the Plaintiff became aware of the dismissal of the suit in October 2016, in the course of a hearing in a succession cause no. 2338 of 2009 wherein the Defendant who was the objector filed an affidavit claiming that the subject suit had been dismissed for want of prosecution.

4. Finally, the Plaintiff depones that she was not served with a notice of the intended dismissal of the suit and that she was surprised that a file that was unavailable to them was dismissed.

5. The Application is erroneously brought under Order 45 Rule 1 of the Civil Procedure Rules. This Order provides for review of decrees and Orders where there is discovery of new and important matter or evidence that was not within the Applicants knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record.  The instant application seeks orders for reinstatement of a suit which was dismissed for want of prosecution. Nonetheless, this is a technicality which can be overlooked by this Court in the spirit of article 159(2)(d) of the Constitution.

6. I have considered the Plaintiff’s application and the submissions made by her counsel.  I find that the Plaintiff has adduced enough evidence by way of the annexed invitation notices to have the matter fixed for hearing as well as seeking the indulgence of the Deputy Registrar of this Court to trace the file.

7. A perusal of the court record shows that before the matter was dismissed on the 22/3/2016, it was last in court on 8/4/2015 slightly over one year.  Though the plaintiff alleges that he was not aware that the matter was coming up for dismissal on 22/6/2017, this court takes judicial notice of the fact that the month of June, 2016 was set aside for dismissal of old matters in the Civil Division of the High Court at Nairobi and parties were notified through the Newspapers and at the judiciary website.

8. However, in the interest of justice, the court shall allow the application dated 24th November, 2016 and give the plaintiff another chance to prosecute the matter.  Costs of the application shall be in the cause.

Dated, signed and delivered at Nairobi this 14th day of July, 2017.

……………….

L. NJUGUNA

JUDGE

In the presence of

………………………… for the Plaintiff.

………………….......…. For the Defendant.