[2022] KEHC 13981 (KLR)

Achilal v Kenneth Wambwire Akide t/a Akide & Co Advocates & 3 others (Civil Case 69 of 2012) [2022] KEHC 13981 (KLR) (Civ) (5 October 2022) (Ruling)

Neutral citation: [2022] KEHC 13981 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Case 69 of 2012

JK Sergon, J

October 5, 2022

Between

Tom Odhiambo Achilal

Plaintiff

and

Kenneth Wambwire Akide t/a Akide & Co Advocates

1st Defendant

Law Society of Kenya

2nd Defendant

City Council of Nairobi

3rd Defendant

People Media Group Limited

4th Defendant

Ruling

1. The Notice of Motion dated February 5, 2020 seeks to set aside orders made on October 14, 2019 dismissing this suit for non-attendance. The application is supported by the affidavit of Mr. Simeo Mugalavai Keyonzo Advocate. The first defendant filed grounds of opposition as well as a replying affidavit sworn by Mr. Kenneth Wabwire Akide (Senior Counsel) on November 3, 2021.

2. Parties agreed to determine the application by way of written submissions. At the time of writing this ruling none of the parties had complied despite the lapse of over five (5) months.

3. The record shows that on July 30, 2019 counsel for the plaintiff fixed the case for hearing on November 14, 2019. On November 14, 2019 counsel for the 1st defendant and the one for the 4th defendant attended court for the hearing. Counsel for the 1st defendant indicated that she was ready to proceed but was not going to call any witness. On her part, counsel for the 4th defendant stated that she had written to the plaintiff’s counsel and informed him that she was going to proceed with the plaintiff’s case but her witness was not available that day. The court noted that the case had previously been fixed for Notice to Show Cause why it should not be dismissed for want of prosecution on two occasions. The court proceeded to dismiss the case for want of prosecution.

4. The explanation by counsel for the plaintiff is that he attended court on November 14, 2019 at 9. 00a.m. He noted that the court had started the day’s business by delivering rulings and judgments. He briefly went to Justice Okongo’s court hoping that by the time he returned the matter would not have been reached. He went back to court with his client at 9. 55a.m. only to be informed by the Judge that the matter had been dismissed for non-attendance on the application of counsel for the 1st defendant. He found Mrs. Ochieng, Counsel for the 4th defendant still seated in court.

5. Counsel for the 1st defendant contended that there was inordinate delay in filing the current application. There are no sufficient grounds as to why the court’s discretion should be exercised in the applicant’s favour. The suit was filed on March 15, 2012 and the plaintiff failed to take any action to prosecute it leading to Notices issued to have it dismissed for want of prosecution.

6. I have gone through the court record. On November 21, 2012 counsel for the parties appeared before Justice Hatari Waweru. Counsel for the plaintiff stated that he had complied with pre-trial requirements. Counsel for the 1st defendant sought 21 days to comply while counsel for the 2nd defendant indicated that he was going to file an application to have his client struck out of the case. On December 3, 2012 once again the matter was mentioned before the same Judge and counsel for the 2nd defendant indicated that the application to strike out the 2nd defendant had been filed on November 22, 2022.

7. On October 9, 2014 Counsel appeared before Justice Aburili. The court was informed that all other defendants had filed applications seeking to have the plaint struck out for not disclosing any cause of action. Counsel sought to have the applications consolidated. The applications were heard on February 10, 2015 and a ruling was delivered on May 15, 2015.

8. The case was mentioned before the Deputy Registrar on November 12, 2015 for purposes of confirming compliance. Parties were granted thirty (30) days to comply. The matter was fixed for mention on December 11, 2015, 29th July 2016, September 16, 2016, November 1, 2016, February 6, 2018 and February 9, 2018 but it appears nothing happened on those dates as the file was not placed before a judicial officer. On February 26, 2018 the matter was mentioned before the Deputy Registrar. The 4th defendant had filed an application dated January 14, 2018. The file was once again placed before the same deputy registrar on March 21, 2018 and the court was informed that all the parties had complied.

9. Once again the file was mentioned on April 9, 2018 before the Deputy Registrar. The 4th defendant’s application for dismissal of the suit was fixed for hearing on May 9, 2018. On May 9, 2018 the case was fixed before Justice Githua. The 4th defendant withdrew the application and urged the court to certify the matter ready for hearing.

10. The record shows that a Notice to show cause why the suit should not be dismissed for want of prosecution was issued for June 28, 2019. There was no proof of service upon the plaintiff and no orders were issued. On July 19, 2019 the case was mentioned before Justice Githua for a similar notice to show cause. Counsel for the plaintiff indicated that he had not been served with the notice and had just seen the matter in the cause list. The court granted the plaintiff 120 days to fix the case for hearing. Counsel for the plaintiff fixed the case for hearing on November 14, 2019 when the same was dismissed.

11. From the court record, it is evident that from 2012 to 2018 the defendants engaged in making applications to have the matter dismissed. The plaintiff cannot be blamed for not having the case heard between the period 2012 to 2018. Soon after the 4th defendant’s application to have the case dismissed was withdrawn, the case was fixed for Notice to show cause why it should not be dismissed for want of prosecution.

12. Given the background of the case, I am satisfied that there has been no deliberate attempt by the plaintiff to delay the prosecution of the case. The explanation by counsel for the plaintiff that he attended court on November 14, 2019 and the case was dismissed while attending to another matter before another Judge is reasonable. The suit was dismissed on November 14, 2019 and the application was fixed on February 5, 2020. The court takes judicial notice of the advent of the Corona Virus during that period which made it a bit difficult for parties to file matters in court. I do find that there is no inordinate delay in filing the current application.

13. Substantive justice demands that a party be heard on the merits of his/her case. The dismissal of the case by the court cannot be allowed to stand as counsel was in court on the hearing date.

14. In the end, I find that the application dated February 5, 2020 has merit hence it is allowed. The order dismissing suit is set aside and the suit is reinstated. Costs of the application to abide the outcome of the reinstated suit.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 5TH DAY OF OCTOBER, 2022……………………………J. K. SERGONJUDGEIn the presence of:………………………………. for the Plaintiff………………………………. for the 1st Defendant………………………………. for the 2nd Defendant………………………………. for the 3rd Defendant………………………………. for the 4th Defendant