[2017] KEHC 1346 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT GARISSA

CIVIL CASE NO. 09 OF 2012

BARE ALI ISSACK...........................................1ST PLAINTIFF

ABDULLAHI BARE ALI...................................2ND PLAINTIFF

VERSUS

FIRST COMMUNITY BANK LTD........................DEFENDANT

RULING

Before me is an application by way of Notice of Motion dated 21st September, 2017 brought by the 2nd plaintiff, on behalf of both plaintiffs. The application was filed under Section 3A and 63 (e) of the Civil Procedure Act (Cap. 21) laws of Kenya and Order 51 Rules 1,3, and 15 of Civil Procedure Rules 2010, and has 4 prayers, one of which has been spent as follows:-

1. ….(spent)

2. That this honourable court do exercise its discretion to reinstatethis matter and set aside its order made on 19th July, 2017 dismissing the plaintiff's suit for non-appearance.

3. That this honourable court be pleased to make any other orders as it deems fit in the interests of justice.

4. That the costs of this application be in the cause.

The application has grounds on the face of the Notice of Motion, which are that the suit was dismissed on 19th July, 2017 mainly on the mistake of counsel as both the advocates for the plaintiff and advocates for the defendants did not attend court. It is also granted that the plaintiffs, were attending to the illness of an uncle who died on 30th July, 2017. Thus the plaintiffs have asked this court to exercise its discretion and reinstate the case.

The application was also filed with a supporting affidavit sworn by Abdullahi Bare Ali the 2nd plaintiff, which states that the plaintiffs were not aware about the dismissal of the case and came to learn about it later in the registry.

In response to the application, the respondents filed a replying affidavit sworn by Mohammed Aden Mohammed the Remedial Officer of the defendant’s bank. It was deponed in the affidavit that the suit was filed on 28th February 2012 seeking an order of permanent injunction against selling properties in Garissa recover to an outstanding loan. Since then the matter only proceeded in November 2015 and on 7th October, 2016 the court dismissed the matter due to the non-attendance of the plaintiff. It was further deponed that on 7th October, 2016 the plaintiffs filed an application to reinstate the suit which was allowed in the interest of justice. However, the plaintiff was not desirous to prosecute the matter and a Notice to Show Cause was thus issued on 22nd June, 2017 by the court to all parties for dismissal of the suit, and on 19th July, 2017 the plaintiff did not appear in court or give an explanation and the suit was thus dismissed by the court. It was lastly deponed that the conduct of the plaintiff herein had demonstrated that they intended to delay honouring their contractual obligation of paying the subject loans to the defendants.

By the time of hearing the application, Balqesa Abdi & Co. Advocates had come on record for the plaintiffs. The said advocates filed written submissions to the application.

The defendants advocates Ms. Ahmednasir Abdikadir & Co. also filed submissions to the application.

On the hearing date, which was 21st November 2017, counsel for the defendant did not appear in court. Ms Balqesa advocate was present and highlighted the written submissions filed.

Ms. Balqesa emphasized that the case of the plaintiffs was dismissed because of a conduct of advocates. Counsel stated that initially plaintiffs were represented by Mosi &Co. Advocates who were negligent and the plaintiffs thus instructed Ojijo & Co. advocates who however also failed to communicate to the plaintiffs on progress of the matter, and the plaintiffs had at one point to act in person.

Counsel submitted that on the day the matter was dismissed by the court, the 2nd plaintiff was attending his sick uncle in Nairobi who later died. According to counsel, the 1st plaintiff was the old father of the 2nd plaintiff who had delegated all matters to do with the case to the 2nd plaintiff.

Counsel relied on the case of Tarda –Vs- Mwakio (2015) eKLR as well as Article 165 and 159 of the Constitution and asked this court to exercise its discretion to reinstate the case in interests of justice. Counsel undertook to prosecute the matter without abusing the process of the court.

I have considered the application and documents filed in respect therein. Counsel on both sides filed written submissions and relied on several case authorities. I have considered the written submissions as well as the oral highlighting done by counsel for the plaintiffs.

This court has discretion under the Civil Procedure Act and Rules to set aside an exparte dismissal of a case and reinstate the case. Each case has to be considered on its own merits. See the case of Tana and Athi Rivers Development Authority (TARDA) vs Jeremia Mwakio & 3 Others (2015) eKLR. The discretion is unfettered but has to be exercised by courts judiciously in the interests of justice.

I have been referred to court cases where the courts allowed reinstatement of such dismissed cases, and cases where the courts have declined to reinstate such cases.

The present case was filed way back in 2012. This is not the first time that the case was dismissed for non-attendance of the plaintiff or his advocates. This fact is amply captured in the replying affidavit of the defendants, and is not in dispute.

When this case was ultimately dismissed on 19th July, 2017, it was because the court had issued a Notice to Show Cause for dismissal of the case. In response to that Notice to Show Cause, Mr. Kohen appeared in court for the defendants, but neither the plaintiff nor their advocates appeared in court and no explanation was given for that failure. This court thus dismissed the plaintiffs suit under Order 17 Rule 2 of the Civil Procedure Rules with costs to the defendants.

Now again the plaintiffs have come to this court seeking a second reinstatement of the case.

In my view, though the plaintiffs claim that it has been their lawyers negligence which caused the dismissals, it appears to me that they are partly to blame. They should have followed up the case to its conclusion. They seem to be busy doing other things from 2012 when the case was filed rather than pursuing the conclusion of their case.

In view of the provisions of Article 159 (2) of the Constitution of Kenya 2010, however, I will give them a last chance as their current lawyer has said that she undertakes to prosecute the case without abusing the court process. That is the only reason that has persuaded me to give them another chance for substantive justice to operate, and urge the lawyer to do so. The chance given to the plaintiffs is also conditional that the suit should be heard within the year 2018.

Consequently and for the above reasons, I allow the application and set aside the dismissal and reinstate the case. The case is thus reinstated. It will however be heard within the calendar year 2018, otherwise unless this court grants other orders, it will stand dismissed with costs.

As I have reinstated the case, the costs of the application will be in the cause.

It is so ordered.

Dated and delivered at Garissa on 7th December, 2017.

George Dulu

JUDGE