[2019] KEHC 3431 (KLR)
The court found that the failure to prosecute the substantive Notice of Motion was attributable to the applicants' counsel and not the applicants themselves. The court held that it would be unjust to penalize the litigants for their counsel's mistake, especially where the respondents would not suffer prejudice by...
Source-derived case information.
- Citation
- [2019] KEHC 3431 (KLR)
- Parties
- Applicant: Charles Onyango; Applicant: Amos Kamotho; Respondent: The Chairman Rent Restrictions Tribunal; Respondent: Wilfrida Anyango Saoke
- Court
- High Court
- Court Station
- High Court at Kericho
- Jurisdiction
- Kenya
- Case Number
- Judicial Review Application 13 of 2017
- Procedural Posture
- Judicial Review Application / Application to Set Aside Dismissal Order and Reinstate Notice of Motion
- Outcome
- application allowed; dismissal order set aside; substantive Notice of Motion reinstated
- Judges
- GMA Dulu
- Legal Topics
- Setting Aside Orders, Want of Prosecution, Judicial Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Charles Onyango
Applicant
Amos Kamotho
Applicant
The Chairman Rent Restrictions Tribunal
Respondent
Wilfrida Anyango Saoke
Respondent
Procedural Posture
Judicial Review Application / Application to Set Aside Dismissal Order and Reinstate Notice of Motion
Legal Issues
- 1 Whether the court should set aside the dismissal order for want of prosecution and reinstate the substantive Notice of Motion.
- 2 Whether the mistake of counsel should be visited upon the litigant.
Ratio Decidendi
The court found that the failure to prosecute the substantive Notice of Motion was attributable to the applicants' counsel and not the applicants themselves. The court held that it would be unjust to penalize the litigants for their counsel's mistake, especially where the respondents would not suffer prejudice by reinstatement. The court exercised its discretion under Order 12 Rule 7 of the Civil Procedure Rules and relevant case law to set aside the dismissal order, emphasizing the constitutional imperative for substantive justice and the right to be heard. The Notice of Motion was reinstated to allow determination on its merits.
Court Disposition
application allowed; dismissal order set aside; substantive Notice of Motion reinstated
Orders
- The orders of the court of 28th January 2019 dismissing the substantive Judicial Review Notice of Motion dated 23rd June 2017 are set aside.
- The substantive Judicial Review Notice of Motion dated 23rd June 2017 is reinstated.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KERICHO
JUDICIAL REVIEW APPLICATION NO.13 OF 2017
CHARLES ONYANGO..............................................................1ST APPLICANT
AMOS KAMOTHO.....................................................................2ND APPLICANT
VERSUS
THE CHAIRMAN RENT RESTRICTIONS TRIBUNAL.....1ST RESPONDENT
WILFRIDA ANYANGO SAOKE ............................................2ND RESPONDENT
RULING
1. A Chamber Summons for leave to commence Judicial Review proceedings for certiorari dated 27th April 2017 was filed in this court by Charles Onyango and Amos Kamotho on the same date through counsel M/s Motanya & Co. Advocates.
2. On the 9th May 2017 the court granted the leave sought and ordered that the substantive Notice of Motion be filed and served within 45 days.
3. The said Notice of Motion was filed on 23rd June 2017 but no progress on the same was recorded, and on 28th January 2019 the court dismissed the Notice of Motion for want of prosecution.
4. Thereafter, on 9th May 2019 the present application for setting aside the orders of dismissal of the application for want of prosecution was filed.
5. The applicant’s counsel filed written submissions to the application but the respondents and their counsel did not attend court, no file submissions though I was informed that they were served with the Notice of Motion. The main trust of the applicant’s argument counsel is that a mistake of an advocate should not be visited on a litigant. He has urged this court to review its dismissal of orders above.
6. This application has been brought under Order 12 of the Civil Procedure Rule under Rule 7, a suit determined on the basis of non-attendance of a party may be revived by setting aside the order of judgment therein. Rule 7 provides as follows –
“7. Where under this Order judgment has been entered or the suit has been dismissed, the court, on application, may set aside or vary the judgment or order upon terms as may be just.”
7. The applicant’s counsel has relied on the case of Belinda Murei & Others – vs – Amoi Wainaina (1978)stating that the court can exercise its discretion in favour of a litigant if the mistake was committed by counsel. In the present case the contention is that the mistake was that of counsel and not the applicants (litigants)
8. It is clear to me that the mistake herein was of counsel. In my view, the respondents will not suffer prejudice by the exercise for this courts discretion in favour of the applicants as there are no restrictive or prohibitory interim orders which will attach to reinstating the main Judicial Review application. At the end of the day also, every party herein will have the opportunity to be heard, as is envisaged under Article 159 of the Constitution and a decision on the merits be reached.
9. I am thus persuaded and will exercise this court’s discretion in the applicants favour to give them a chance for application of substantive justice by hearing and determining their Notice of Motion on its merits.
10. I thus set aside the orders of the court of 28th January 2019 dismissing the substantive Judicial Review Notice of Motion herein dated 23rd June 2017. That Notice of Motion is hereby reinstated, but it will have to be fixed for hearing by June 2020. Costs in the cause.
Dated and delivered at Kericho this 24th October 2019.
GEORGE DULU
JUDGE