[2014] KEHC 585 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL APPEAL NO. 466 ‘A’ OF 2005

BENJAMIN MUTUNE T/A FAITH AGENCIES .................................... APPELLANT

VERSUS

JAMES MUTISO MWANGAO ...……..................................……….. RESPONDENT

R U L I N G

The application before this court by the appellant/applicant Kenya Tyres Distributors limited is dated 19th October 2012. It is brought under the provisions of Order 17 Rule. It seeks orders for reinstating the appeal herein by setting aside, varying and or reversal of the orders of this court made on 26th September, 2012, dismissing the appeal herein for want of prosecution. The said order was made by Hon. Justice D.A. Onyancha.

The said application is grounded on the grounds on the face of the application and the sworn affidavit of Job Mwangi Thiga.

In the said grounds and affidavit, the appellant’s counsel avers that the dismissal of the appellant’s appeal was by error as the advocates who had been served with the said application and a hearing notice for that day were no longer acting for the appellant. Having ceased acting for the appellant by way of a signed consent with the present advocates M/s Waruhio K’Owade & Ngang’a Advocates to come on record on 25th July 2012. Further, that the advocates for the appellant were therefore not aware of the application coming up for hearing on that date when it was dismissed.

In addition, it is averred that there is sufficient cause to have the appeal reinstated as the appellant has interest in prosecuting it only that there was a problem between their former advocates and the current ones over the change over which took time.

In their submissions in support of the application, counsel for the appellant averred that their non-attendance to prosecute the appeal on 26th September 2012 was because the appellant was in the process of changing advocates. The present advocates had just received instructions to act and had filed an application dated 10th November 2010 to come on record in the place of Waruhiu and Gatimu Advocates which application had been served on the respondents on 15th August 2012 and slated for hearing on 9th October 2012.

Regrettably, the respondent’s application had been filed and fixed for hearing on 26th September 2012, which date the appellant’s advocates were not aware of when they filed their application to come on record and that the respondent’s counsel did not disclose to the court and which facts had the judge been made aware of, he would not have dismissed the appeal as he did.

It was further submitted that the appellant was ready and willing to have the appeal heard and determined on merits and that it was in the interest of justice under Article 50 (1) of the Constitution that the appellant be heard.

In their appeal that absence of counsel on the date of dismissal is excusable, he relied on the case of Harrison Wanyoki Wambugu – Vs – Felista Wairimu Chege & Another paragraph 14 – 16 where it was held that failure to prosecute an appeal by the appellant was excusable and the Judge was therefore wrong in failing to exercise his discretion to reinstate the appeal to give a chance to be heard on merit.

The application herein was opposed. Relying on the replying affidavit sworn by Mr. Omwenga advocate, Miss Kemunto submitted that as the advocates herein arguing the application for reinstatement of the appeal are not properly on record, they lack the locus standi to prosecute the application herein as their application for leave to come on record was never prosecuted until the appeal was dismissed.

It was further submitted that the said application for leave to come on record was never served on the respondent’s advocates and that such failure to serve violated the consent recorded on 19th July 2012 between Waruhiu K’Owade Nganga & Co Advocates and Waruhiu, Gaturu & Co Advocates.

The appellant’s advocates were further challenged for not filing notice of change of advocates and or serving the same upon the respondent’s advocates. In addition, that the said advocates had knowledge of the application to dismiss the appeal as they filed a consent or application to come on record since the appeal had been pending since 2001and that the delay in prosecuting it is inexcusable. It was further submitted that as the decretal sum deposited had been released to the respondent, the appeal would serve no purpose even if it was reinstated.

In response on the issue of locus standi, it was submitted that Order 9 Rule 9 of the Civil Procedure Rules requires an order of the court for change of advocates to be effected and this was not done on 9th October 2012 before this application was filed.

I have carefully considered the appellant’s application for reinstatement of the appeal and the submission for and against grant of the orders sought. The only issue for determination is whether the appellant is entitled to an order setting aside dismissal of the appeal for want of prosecution.

The law applicable to this case is Order 42 Rule 21 of the Civil Procedure Rules which provides that where an appeal is dismissed under Rule 20, the appellant may apply to the court to which such appeal is preferred for the readmission of the appeal, and; where it is proved that he was prevented by any sufficient cause from appearing when the appeal was called on for hearing, the court shall re-admit the appeal on such terms as to costs or otherwise as it thinks fit.

From the above provisions of the law, it is apparent that the court’s discretion to set aside an order dismissing the appeal for want of prosecution is unfettered.

In Richard Ncharpi Leiyagu – Vs – IEBC & 2 Others [2012] eKLR, it was held that the court’s discretion to set aside an exparte order or judgment for that matter is intended to avoid injustice, or hardship resulting from an accident, inadvertence or inexcusable mistake or error, but not to assist a person who deliberately seeks to obstruct or delay the course of justice.

In an earlier case of CMC Holdings Limited – Vs – Nzioki (2004) eKLR 173, the court held that:-

“… The discretion must be exercised judiciously … In law, the discretion that a court of law has, in deciding whether or not to set aside exparte order was meant to ensure that a litigant does not suffer injustice or hardship as a result of amongst others an excusable mistake or error. It would not be proper use of such discretion if the court turns its back to a litigant who clearly demonstrates such an excusable mistake, inadvertence, accident or error. Such an exercise of discretion would be wrong in principle … The answer to that weighty matter was not to advise the appellant of the recourse open to it as the learned magistrate did here. In doing so, she drove the appellant out of the judgment seat of justice empty handed when it had what it might have well amounted to an excusable mistake visited upon the appellant.”

It is not in doubt that this appeal was filed in the year 2001 at Machakos High Court vide Machakos HCCA 79 of 2001 and later on transferred to Nairobi HCCA 466 ‘A’ of 2005 consolidated with HCCA 366 ‘A’ of 2005 on 4th February 2009. It is disputed that the appeal was filed by Waruhiu & Gathuru advocates for the appellants. By an application dated 10th November 2010, the firm of Waruhiu, K’Owade & Nganga advocates were instructed to file an application for leave to come on record in the place of Waruhiu & Gathuru advocates for the appellant and the said application was fixed for hearing on 17th May 2010. It was served on the respondent’s former advocates on 28th March 2011. On 17th May 2011 the application was adjourned as the two advocates were still sorting out issues of representation.

On 17th June 2011 the said advocates again adjourned the application by consent to 15th July 2011. As the two advocates were discussing on whether the other should relinquish the brief to the other or not, the application remained pending prompting the respondent on 3rd July 2012 to file an application for dismissal/striking out of the appeal herein. The said undated application was served on Waruhiu & Gathuru advocates on 6th July 2012.

On 25th July 2012 vide a consent letter dated 19th July 2012 between Waruhiu & K’Owade & Nganga advocates and Waruhiu & Gathuru advocates, it was agreed to dispose of the motion dated 10th November 2010 and a notice of change of advocates was filed on 9th October 2012.

As at 6th July 2012, the firm of Waruhiu, K’Owade & Nganga advocates had not prosecuted their application to come on record owing to the ongoing discussions with their counterparts. The respondent’s advocates were not part of those discussions/negotiations.

The undated application filed on 3rd July 2012 was fixed for hearing on 26th September 2012, on which date the former advocates had been served but they did not attend court or file opposing affidavit so the appeal was dismissed for want of prosecution with costs.

The consent order allowing the advocates for the appellants to come on record was adopted on 9th October 2012 by the Deputy Registrar after the appeal had been dismissed.

From the scenario described above, it is clear that this was a case of two bulls (advocates) fighting and the grass (client) was or because the ultimate sufferer. The former advocates for the appellant no doubt held their client at ransom as they are the ones who were regularly on record, they were served with the application for dismissal of the appeal herein but they never bothered to bring it to the attention of the intending advocates. The latter on the other hand were busy negotiating for a consent with the former to come on record for the client (appellant) when the appeal was dismissed.

The record further shows that although there are two appeals HCCA 366A and 466A/2005 consolidated, regrettably, the proceedings in this appeal were being recorded in different files hence, one cannot follow the sequence of proceedings leading to possible confusion.

It is also clear that when the matter came up for hearing before Hon. Onyancha J on 26th September 2012 proceedings were recorded in HCCA 366A/2005 including the fixing of dates for the different applications. It therefore required one to meticulously peruse the record to find out where or whether there was any pending application, which, in my view, the appellant’s counsel herein did not do.

That notwithstanding, it is my view that the said advocates are regularly on record for the appellant having obtained an order by consent of the former advocates Waruhiu & Gathuru advocates and having subsequently filed notice of change of advocates as required by law, albeit the said notice was filed after the appeal herein had been dismissed for want of prosecution. In my view, the confusion between advocates on the file occasioned a procedural technicality which should not be used against the appellant.

There is nothing on record to demonstrate that the advocates herein or the appellant were aware of the application for dismissal of the appeal owing to the impending power struggles on who should represent the appellant. There is evidence that the appeal herein was active prior to the power struggles and the respondent only took advantage of the confusion to have the same dismissed for want of prosecution.

There is no evidence that directions on appeal had been given under the provisions of Order 42 Rule 13 (1) of the Civil Procedure Rules, following the transfer of the appeal from Machakos High Court to Milimani High Court and subsequent consolidation on 4th February 2009 with HCCA 366A of 2005 formerly Machakos HCCA 77 of 2001 until that date as recorded by Hon. Hatari Waweru J. It had not even been admitted to hearing when the parties were purporting to have it heard, adding more confusion. Later it was admitted to hearing on 3rd March 2009 by Hon. Okwengu J and before directions could be given, the issue of representation emerged in 2011 and this is what culminated in its dismissal.

With the above in mind, this court has unfettered discretion, in the interest of justice to set aside the orders of Hon. Onyancha J dismissing the appeal for want of prosecution on 26th September 2012. Had the learned Judge been made aware of the above scenario, I am convinced that he could have hesitated to grant the orders sought on that date as he did.

There is, in my view, good reasons advanced why there was no attendance by the appellant’s counsel in court, owing to the dispute on legal representation.

This court will therefore exercise its discretion in favour of the aggrieved appellant and allow the application dated 19th October 2012 in terms of prayer 2 thereof.

It has been submitted that as the decree was satisfied the appeal even if reinstated will serve no purpose. To the contrary, money decrees whether satisfied or not do not render the appeal purposeless. A successful appellant can always seek for a refund of the money paid out. It would be unfair to oust the appellant from the judgment seat on account of conflicts between its lawyers on legal representation. There is every evidence that the appellant was all along interested in prosecuting the appeal herein as consolidated.

As the respondent took advantage of the conflict between the 2 advocates on representation to obtain the orders being challenged herein, I make no orders as to costs.

The appellant was not accorded a fair hearing. It was also denied access to justice as espoused in Articles 48 and 50 (1) of the Constitution. These rights deserve to be restored at this stage.

Those are orders of the court.

Dated, signed and delivered at Nairobi this 3rd day of December, 2014.

R.E. ABURILI

JUDGE