Mwaura & another v Ndungo & another [2023] KEHC 24597 (KLR)

Mwaura & another v Ndungo & another (Civil Suit 519 of 2011) [2023] KEHC 24597 (KLR) (Commercial and Tax) (3 November 2023) (Ruling)

Neutral citation: [2023] KEHC 24597 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Commercial and Tax

Civil Suit 519 of 2011

FG Mugambi, J

November 3, 2023

Between

Peter Gichora Mwaura

1st Plaintiff

Paul Kungu Kamata

2nd Plaintiff

and

Joseph Weru Ndungo

1st Defendant

Housing Finance Of Kenya Limited

2nd Defendant

Ruling

1. Before the court is an application dated 3rd November 2022. It is brought under Order 12 rules 2(a) and 7, Order 51 rule 1 of the Civil Procedure Rules (2010) and section 3A of the Civil Procedure Act. The application primarily seeks to set aside the ruling of this Honourable Court (Mshila, J), delivered on 17th day of June 2022, dismissing the suit hereof for want of prosecution.

2. The main grounds of the application are that the orders for dismissal were obtained through deceit and unprofessional behavior as counsel for the plaintiff was served with a mention notice for 19th May 2022 at 9:00 am for purposes of taking a hearing date for the application (dated 12th July 2021 for dismissal of the suit). Instead of the application being given a hearing date, it was prosecuted in the absence of the applicant’s counsel and the orders prayed for were granted.

3. The applicant states that the reason for missing court that day was that counsel attending the matter was in another High Court at the time. The applicant acknowledges that on 25th May 2022 they received a Ruling Notice for the ruling on 17th June 2022 which they attended, filed a review application dated the 13th day of July 2022 and later withdrew the same and filed the current application.

4. In any case, the plaintiff argues that their Mr. Kamata advocate had attended the Court beforeHon. S. Githogori (DR) on the 27th September 2023 having been served to do so by counsels for the 1st defendant, and who did not attend the Court then. By the time the matter was coming before the Hon. DR, the plaintiff alleges that they hadfixed a date for the application to substitute the 1st plaintiff and that a hearing notice dated the 28th September 2021 notifying the 1st defendant to attend court on 15th November 2021, was received on 30th September 2021.

5. Counsel argued that under the provisions of Order 17 rule 2(3) of the Civil Procedure Rules, dismissal applies “in any suit in which no application has been made or step taken by either party for one year." Counsel argues that this did not apply in the present circumstances because the plaintiff’s application seeking substitution of the 1st plaintiff who passed on was filed on the 11th day of November 2020.

6. Moreover, there was a Court attendance by Mr. Kamata advocate on behalf of the plaintiffs on the 27th day of September 2021, before the said application dated 12th July 2021 was served upon the plaintiffs and the period in between was not 1 year. Counsel argued that the application for dismissal was pre-maturely filed as the same was filed when the plaintiff’s application seeking to substitute the 1st plaintiff who passed on was only about nine (9) months old in the Court file from the time it had been filed.

7. The application was opposed by the 1st defendant on the grounds that it was misconceived as it sought to set aside the decision of the court relying on the provisions of Order 12 Rule 7 which provides for setting aside on account of non-attendance. The 1st defendant pointed out that the ruling delivered on 17th June 2022 confirmed at paragraph 1 that the Learned Judge was considering a Notice of Motion application seeking dismissal of the suit for want of prosecution. The 1st defendant argued that the plaintiff was undeserving of the orders sought.

Analysis 8. I have carefully considered the pleadings, evidence and submissions made by the parties in support of their arguments. I note that the impugned ruling relates to a Notice of Motion application, which was filed by the 1st defendant on 12th July 2021. That application was brought under Order 17 rule 2(3) of the Civil Procedure Rules. The application of 3rd November 2022 which is before me and brought by the plaintiff is brought under Order 12 rules 2(a) and 7.

9. I agree with the submission by Counsel for the 1st defendant that the same is erroneous. Since the application that was before the Learned Judge was one for dismissal of the suit for want of prosecution and not for dismissal for non-attendance as cited by the plaintiff, an application for reinstatement of the suit ought to have been made under Order 17 rule 2(6) which states that a party may apply to court after dismissal of a suit under this Order. That means that the Court still retains the discretion to reinstate a dismissed suit if the indolent party can satisfy it that there are good reasons why the suit remained un-prosecuted for that long period.

10. Be that as it may, the justice of this matter would favor that the application be dealt with on its merits in taking a cue from the court in Dominion Farm Limited vs. African Nature Stream & Another, Kisumu HCCC No. 21 of 2006. The Court stated as follows:“Whereas the rules of procedure are not made in vain and are not to be ignored, often times the Courts will encounter inadvertent transgressions or unintentional or ill-advised omissions through defective, disorderly and incompetent use of procedure but which if strictly observed may give rise to substantial injustice and in such circumstances, the exercise of the discretion of the Court comes into play to salvage the situation for the ends of justice.”

11. Counsel for the 1st defendant beseeched this Court to find that the applicant had not established sufficient cause to warrant setting aside the orders of the Court based on a mistake that the Honourable Court made by not considering that the plaintiffs appeared before Hon. Githogori on 27th September 2021 or that the plaintiffs advocate experienced internet connectivity and could not attend court on 15th November 2021.

12. Counsel referred the court to the case of Nilesh Premchand Mulji Shah & Another T/A Ketan Emporium V M.D. Popat & Others & Another, [2016] eKLR. In this case the court referred to the decision in Ivita V Kyumbu, [1984] KLR 441 where the principles for reinstatement of suit were set out thus:“The test is whether the delay is prolonged and inexcusable, and, if it is, can justice be done despite such delay. Justice is justice to both the Plaintiff and Defendant; so both parties to the suit must be considered and the position of the judge too, because it is no easy task for the documents, and, or witnesses may be missing and evidence is weak due to the disappearance of human memory resulting from lapse of time. The Defendant must however satisfy the court that it will be prejudiced by the delay or even that the plaintiff will be prejudiced. He must show that justice will not be done in the case due to the prolonged delay on the part of the plaintiff before the court will exercise its discretion in his favour and dismiss the action for want of prosecution. Thus, even if delay is prolonged if the court is satisfied with the plaintiff's excuse for the delay, the action will not be dismissed, but it will be ordered that it be set down for hearing at the earliest available time.”

13. I also took the liberty to peruse through the file so as to determine whether the plaintiff had demonstrated any reasons to reinstate the suit. This is a chronology of events leading to the filing of the application for dismissal of the suit: 4th April 2019: By consent hearing scheduled for 9th July 2019.

9th July 2019: Plaintiff not ready to proceed. Witness in the US attending hospital and another witness attending a burial. Further hearing on 25th November 2019.

25th November 2019: Plaintiff not ready. Witness was released from hospital and is too weak to attend court. 2nd plaintiff not ready. Last adjournment. Further hearing on 30th March 2020.

30th March 2020: No appearance by the plaintiff. Court vacation. Mention to fix a hearing date on 5th August 2020.

5th August 2020: No appearance by the plaintiff. Hearing on 23rd November 2020.

23rd November 2020: No appearance by the plaintiff. Application has been filed to substitute the 1st plaintiff. Application scheduled for hearing on 8th December 2020.

8th December 2020: No appearance by the plaintiff. Mention on 15th March 2021.

13th March 2021: No appearance by the plaintiff. Mention on 25th May 2021

24th May 2021: No appearance by the plaintiff. Hearing of the application on 5th July 2021.

5th July 2021: No appearance by the plaintiff. 2nd defendant to file and serve an application for dismissal of the suit for want of prosecution within 7 days. Hearing of the application on 27th September 2021. (the plaintiff was served with the application and on this day appeared). N/A by the defendants

27th September 2021: Before the Hon. DR. Defendants absent. Plaintiff present. Hearing on 15th November 2021.

15th November 2021: No appearance by the plaintiff

19th May 2022: No appearance by the plaintiff. No replying affidavit filed to the application of 12/07/2021. Pray for ruling date. Mention on 23rd May 2022 to fix a ruling date.

23rd May 2022: No appearance by the plaintiff. Ruling on 17th June 2022. Notice to issue.

17th June 2022: All parties present. Ruling delivered. The suit is dismissed for want to prosecution.

14. The record above demonstrates numerous instances of absenteeism by counsel for the plaintiff which have not been explained. All these have led to a delay of over 10 years in the prosecution of this case, solely at the behest of the plaintiff. The Court expressed its dissatisfaction with the conduct of counsel for the plaintiff at paragraphs 9 to 12 of the ruling noting that for all the multiple times that counsel had the matter adjourned at his instance or failed to attend court on numerous occasions, no courtesy of an explanation was given to the court.

15. Obviously displeased with this conduct, the court proceeded and gave directions on the application for dismissal of the suit for want of prosecution. The court further notes that as a demonstration of the indolence, the plaintiff did not even put in a response to the application for dismissal despite having been served with all the notices.

16. Counsel for the plaintiff claims to have been unable to join in the call when the court was to give directions on the hearing of the application for dismissal. In my view, the excuse that counsel was before another court is not tenable. No evidence has been given of which matter and in which court counsel was appearing, as to have made it impossible for him to attend a matter that had the potential of being dismissed for its dormancy.

17. I also note that this is the one court appearance that Counsel takes issue with, in complete disregard of the 10 years delay that has been occasioned by him. The court already pronounced itself on the service of all notices to the applicant and I do not wish to depart from that finding.

18. My assessment from the analysis above, is that the applicants filed this suit and went to sleep, only occasionally jolting out of their slumber for purposes of circumventing the Civil Procedure Rules to make sure that one year does not lapse without them taking any action and then going back to slumber. This in my view explains the appearance on 23rd November 2020, 27th September 2021 and 17th June 2022.

19. The Learned Judge in my view and correctly so, considered the dictates of article 159(2)(b) of the Constitution to the extent that the Judiciary is bound by the constitutional principle in the exercise of judicial power that justice shall not be delayed, under article 159(2)(b) alongside the Civil Procedure Rules and particularly considered not just the provisions of Order 17 rule 2 but the overriding objective of the Civil Procedure Rules and also correctly addressed herself to judicial pronouncements.

20. The Judge then found that there had been prolonged delay and that the same was not excusable. The prejudice on the defendant by having a suit pending for a period of over 10 years was also considered. The court had noted that it is the defendants who had been pursuing the case.

21. Upon reviewing all aspects of the matter, I am convinced that the plaintiff is merely seeking an opportunity to maintain the suit without any serious intention of prosecuting it as evidenced by his dilatory and tardy conduct since the suit was filed. The appearance by the plaintiff on 27th February 2022 after the application for dismissal had already been filed is a non-starter, having missed so many other attendances before court with no explanation.

22. The Court enjoys inherent power under the Civil Procedure Act to give effect to the overriding objective of the Act and the rules so as to facilitate the just, expeditious, proportionate and affordable resolution of the civil disputes. The constitutional dictates in article 159(2)(b) are yet another instruction to the courts. The court in exercising its inherent power correctly addressed itself to the totality of the law before it.

Determination 23. The upshot of this is that with the exceptional circumstances of delay in this case and the conduct of the applicant, I am convinced that the applicant is not deserving of the reinstatement of this suit. I therefore dismiss the application of 3rd November 2022. I will, however, not condemn the plaintiff to costs as he has already lost his right to be heard on merit.

DATED, SIGNED AND DELIVERED IN NAIROBI THIS 3RD DAY OF NOVEMBER 2023. F. MUGAMBIJUDGE