[2025] KEHC 4010 (KLR)

Christian Broadcasting Network Kenya (CBN) v Almark Awua Drillers Limited (Civil Appeal E165, E166, E166, E167, E168 & E169 of 2021 (Consolidated)) [2025] KEHC 4010 (KLR) (27 March 2025) (Ruling)

Neutral citation: [2025] KEHC 4010 (KLR)

Republic of Kenya

In the High Court at Machakos

Civil Appeal E165, E166, E166, E167, E168 & E169 of 2021 (Consolidated)

EN Maina, J

March 27, 2025

Between

Christian Broadcasting Network Kenya (Cbn)

Appellant

and

Almark Awua Drillers Limited

Respondent

Ruling

1. Before this court is a notice of Motion Application dated 27th January, 2025 which seeks the following orders:“a.Spentb.Spentc.Spentd.The order of stay of execution made on 28th June 2022 be reinstated.e.Appeal No 165 of 2021 (as consolidated with Appeals No 166 of 2021, 167 of 2021, 168 of 2021 and 169 of 2021) be reinstated.b.The costs of the application be in the cause.”

2. The application is premised on the grounds on its face and supported by the Affidavit of Peter Kimaru sworn on 27th January 2025. He deposes that being aggrieved by the judgment delivered in CMCC 649 of 2018, CMCC 650 of 2018, CMCC 651 of 2018, CMCC 652 of 2018 and CMCC 97 of 2019 he preferred these appeals which are now consolidated. That he also obtained an order for stay of execution and has since deposited a sum of Kshs.700,000/- in a joint interest earning account. He deposes that as he was in the process of preparing the Record of Appeal, he was informed by his then advocates that the appeals had been dismissed which information shocked him as he had on several occasions requested for an update on the matter to no avail.

3. He gives the sequences of happenings in the appeals to be that he was directed to file a Record of Appeal within 30 days from 11th July 2024 but when the matter next came up for mention on 24th September 2024, nothing transpired; that thereafter the Respondent filed an application dated 17th November 2024 for dismissal of the appeal which was allowed yet the application had not been served upon him and hence he was not aware of it. He deposes that there was an error apparent on the face of the record and that he has an arguable appeal and it is in the interest of justice that he be heard.

4. The Respondent opposed the application through a Replying Affidavit sworn by Lucy Nzili on 2nd February, 2025 where she deposes that the appeal was dismissed after considering the inordinate delay, circumstances of the case and the unreasonable length of time, three years, that the Appellant failed to take any steps to prosecute the appeal. She deposes that there was no demonstration of substantial loss and the Appellant is merely seeking to evade the consequences of its own inaction by portraying itself as a victim. She contended that the issue of there having been no consent of the former advocates for the current advocates to come on record as is required by the Civil Procedure Rules was not pleaded and is therefore a non-issue.

5. In response, the Appellant filed a supplementary affidavit dated 17th February 2025 in which he denied being indolent. He deposed that he had been following up on the appeals and reiterated that he should be given an opportunity to be heard on merit as the appeals were dismissed summarily. He deposed that his former advocate acted as his agent and he was following up with him and also that he filed the Notice of change of advocates accompanied by a consent.

Submissions 6. The application was canvassed by way of written submissions. The Appellant filed submissions dated 17th February 2025 in which they raised five grounds. First that the Appellant’s advocate was properly on record as they had filed a consent with the notice of change of Advocates; that this court has inherent power to set aside any ex parte order under Order 51 rule 15 of the Civil Procedure Rules, and Section 3A of the Civil Procedure Act. To buttress this point, the Appellant relied on the case of Palace Investment Limited & Another vs Penina Achieng Oyugi & 5 others [2012] eKLR.

7. Learned Counsel for the Applicant submitted that the Appellant has a right to be heard. Reliance was placed on the case of Richard Nchapi Leiyagu vs IEBC & 2 Other [2013] eKLR, Susan Wangari Mwangi vs Nangenye Gatonye Warangania [2014] KECA 490 and Wachira Karani vs Nildad Wachira [2016] KEHC.

8. Counsel further submitted that the Appellant/Applicant has given sufficient reason for not attending the court when the application for dismissal came up; that even though the advocate failed to attend court, the ex parte order should be set aside and allow the party to be heard on merit. Counsel relied on the case of Wilson Cheboi Yego vs Samuel Kipsang Cheboi [2019] KECA 638 KLR.

9. Lastly, Counsel submitted that the record of appeal was ready and the Respondent would not be prejudiced if the appeals are reinstated and heard on merit. Counsel prayed that the stay be also reinstated as he had complied with the conditions set by this court.

10. In his submissions dated 3rd March 2025, learned Counsel for the Respondent accused the Appellant/Applicant of dishonesty and urged this court not to reinstate the appeals. Counsel blamed the Appellant/Applicant of indolence and submitted that it is not deserving the exercise of the court’s discretion.

Analysis and determination 11. I have carefully considered the application, the Replying Affidavit, the rival submissions and cases cited.

12. There is a consent on record between the firms of Henia Anzala & Associates and Odhiambo Oronga & Company Advocates dated 22 November, 2025 and that settles the issue of compliance with Order 9 Rule 9 of the Civil Procedure Rules in regard to change of Advocates.

13. On the merits of the application, the appeals herein were dismissed for want of prosecution under Order 42 Rule 35 (2) of the Civil Procedure Rules.

14. Since Order 42 of the Civil procedure Rules does not provide for reinstatement of an appeal once dismissed, such discretion would be exercised under Sections 3 and 3A of the Civil Procedure Rules.

15. The discretion of the court is wide and unfettered but as is always the case such discretion must be exercised judicially.

16. The rationale for the discretion was spelt out in the case of Shah –vs- Mbogo and Another [1967] E.A 116 as follows:“The discretion to set aside an ex-part judgment is intended to be exercised to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake or error but it is not designed to assist a person who has deliberately sought whether by evasion or otherwise to obstruct or delay the cause of justice.”

17. I have perused the court record and note that these appeals were filed on or about 2nd November 2021; that on 7th February, 2022 this court delivered a Ruling which overruled a Preliminary Objection filed by the Respondents and ruled that the appeals were competent and properly before the court. That on that the Appellant/Applicant’s application for stay of execution dated 28th October,2021 was determined on 28th June, 2022 and on 13th December, 2022 the court confirmed that security had been settled. The matter was then left to the Deputy Registrar to deal with the issue of the lower court file. The lower court record was availed on 25th April, 2024 whereupon the Deputy Registrar referred the file back to the Judge.

18. On 11th July 2024, the court gave directions that;“(i)The Record of Appeal be filed and exchanged within 30 days,(ii)The Respondent may file of respond thereafter within 10 days,(iii)Thereafter written submissions to be exchanged with each side having 14 days,(iv)FMD on 24th September, 2024. ”

19. There was no further mention/action in the file until 17th November, 2024 when the Respondent filed an application seeking to have the appeals dismissed for want of prosecution. The record shows that the appeals were dismissed for want of prosecution on that very day.

20. The Appellant/Applicant contends that it was not served with the application dated 17th November, 2024 and indeed that is the gist of this application.

21. I have perused the record and there is no affidavit of service on the record to prove that the Appellant was indeed served with the said application. In the case of Richard Nchapi Leiyagu v Independent Electoral and Boundaries Commission & 2 others [2013] eKLR the Court of Appeal, faced with a similar issue, observed as follows:-“We agree with those noble principles which go further to establish that the court's discretion to set aside an exparte judgment or order 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. We have considered the reasons that were offered by the appellant regarding their failure to attend court on the 10th June, 2013 with anxious minds. We have asked ourselves whether failure to attend court on 10th June, 2013, constituted an excusable mistake, an error of judgment regarding counsel's failure to diarize the date properly or was it meant to deliberately delay the cause of justice.“The right to a hearing has always been a well-protected one in our Constitution and is also the cornerstone of the rule of law. This is why even if the courts have inherent jurisdiction to dismiss suits, this should be done in circumstances that protect the integrity of the court process from abuse that would amount to injustice and at the end of the day, there would be proportionality.”

22. In this case the Appellant/Applicant has explained the reason for the delay and has also demonstrated that it was not aware of the application for dismissal of its appeal. The Appellant/Applicant has explained that it was in the process of filing the record of Appeal when it got information that the appeals had been dismissed. There is nothing to rebut this position. The Appellant/Applicant has also stated that it had fully complied with the conditions imposed by the court in regard to stay, and this again is a demonstration of its bonafides. I am therefore inclined to exercise the discretion of this court in its favour.

23. The upshot is that the application is allowed and orders are hereby granted as follows: -i.That the appeals be and are hereby reinstated.ii.That the Record of Appeal(s) be filed and served within 21 days if not already filed.iii.That the stay of execution is reinstated.iv.That the Appellant/Applicant shall set down the appeals for hearing and shall have the same fully prosecuted within ninety (90) days of this Ruling.v.That the costs of this application shall be borne by the Appellant/Applicant.vi.That the Appeals shall be mentioned for further directions on 28th April,2025. Orders accordingly.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY ON THIS 27TH DAY OF MARCH, 2025. E. N. MAINAJUDGEIn the presence of:Mr. Otieno for the Appellant/ApplicantMr. Kivui for Ms Nzili for the RespondentsC/A: Wambua