[2022] KEHC 10139 (KLR)

Constituencies Development Fund Board v Milestone Engineering & another (Civil Appeal 290 of 2017) [2022] KEHC 10139 (KLR) (Civ) (1 July 2022) (Ruling)

Neutral citation: [2022] KEHC 10139 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal 290 of 2017

JK Sergon, J

July 1, 2022

Between

Constituencies Development Fund Board

Appellant

and

Milestone Engineering

1st Respondent

Dagoretti South Constituency Development Fund Committee

2nd Respondent

Ruling

1. Before me for resolution is the notice of motion datedApril 6, 2022brought by the appellant/applicant and supported by the grounds set out on its face and the facts stated in the affidavit of advocate Paul Chege. The applicant sought for the following orders in its Motion being that the orders made by Hon.Sergon J on the 17th of March, 2022 dismissing this appeal with costs for want of prosecution be set aside, Orders of stay be reinstated and record of appeal filed on March 31, 2022 be deemed as properly filed and costs be in cause.

2. To resist the motion, advocate James J Njoroge swore a replying affidavit on April 28, 2022on behalf of the 1st respondent.

3. When the motion came up for interparties hearing before this court, the parties respective advocates chose to rely on the averments made in their respective affidavits. I have considered the grounds laid out on the body of the Motion, the facts deponed in the affidavits supporting and opposing it.

4. In his affidavit, Paul Chege deponed that on no notice to show cause was served on the applicant or its advocate prior to the dismissal of the appeal and that their advocate have now obtained the certified copies of the typed court proceedings and the certificate of delay dated March 14, 2022.

5. The deponent stated that the appellant’s advocates only came to know about the dismissal of the appeal through the e-filing portal’s case activity on March 31, 2022 when their clerk filed the record of appeal.

6. The deponent averred that the record of appeal was filed on March 31, 2022 and the same was acknowledged as duly filed by the deputy registrar of this court.

7. It was the assertion of the deponent that the appellant was condemned unheard and that the 1st respondent will not be prejudiced if this application is allowed and further there existed an order for stay which the appellant had deposited security in a joint interest earning account with the 1st respondent’s advocates.

8. In response, James Njoroge stated inter alia, that the appellant waited for a period of 1,204 days from the date of delivery of judgment to apply for certified copies of proceedings and judgment on August 28, 2020 and on January 28, 2022 the respondent received a message from judiciary that this matter had been listed for Notice to show cause on March 17, 2022 before this court.

9. The deponent avers that the 1st respondent appeared before this court on March 17, 2011 when the judge gave directions for parties with Notice to show cause to confirm attendance, when the matter was called out the appellant’s and 2nd respondent’s advocates were absent to show cause and the matter was dismissed for want of prosecution.

10. It was the averment of the deponent that the appellant filing of the record of appeal on March 31, 2022 was a nullity as the appeal herein had already been dismissed and the fact that the appellant had a period of more than 5 years from the date of judgment on May 12, 2017 to prosecute its appeal but chose not to.

11. It is the deponent’s assertion that the 1st respondent had obtained a loan facility from the consolidated bank to complete the contract on time and the default in payment by the appellant and 2nd respondent really prejudiced the 1st respondent finances as the loan facility continued to accumulate interest and penalties and properties of the directors of the 1st respondent auctioned.

12. I have considered the grounds as presented in the Motion, the facts deponed in the affidavits supporting and opposing the Motion, and the rival oral arguments and bundle of authorities filed by the relevant parties.

13. When a party wishes to set aside an order of dismissal of suit for want of prosecution is guided by the provisions of order 12 rule7 of the Civil Procedure Rules. It provides that, “Where under this order judgement has been entered or the suit has been dismissed, the court on application may set aside or vary the judgement or order upon such terms as may be just.”

14. In the application before me, all what the appellant is required to show is that there was sufficient cause of his failure to attend court. The explanation given by his advocate in the affidavit in support is that the firm only learnt of the dismissal of the appeal through their clerk who had gone to file the record of appeal and through the e-filing portal case activity that showed the matter was dismissed through a notice to show cause on March 17, 2022.

15. He further depones that the neither the appellant nor its advocates were given such notice nor served with the Notice to show cause or were aware that the notice to show cause was scheduled for the hearing date. I understand this to mean that the Advocate failed to notify the appellant of the hearing date.

16. The counsel for the appellant made a mistake by not diarizing the matter. In the case of Belinda Murai &othersvsAmos Wainaina , [1978] LLR 2782 Madan J.A. (as he then was) described what constitutes a mistake in the following words: -“A Mistake is a mistake. It is no less a mistake because it is unfortunate slip. It is no less pardonable because it is committed by Senior Counsel. Though in the case of Junior Counsel, the court might feel compassionate more readily. A blunder on appoint of law can be a mistake. The door of justice is not closed because a mistake has been made by a lawyer of experience who ought to know better. The court may not condone it but it ought certainly to do whatever is necessary to rectify it if the interests of justice so dictate. It is known that courts of justice themselves make mistakes which is politely referred to as erring in their interpretation of law and adoption of a legal point of view which courts of appeal sometimes overrule….”

17. Setting aside of Orders as sought in this case is discretionary. The discretion of the court is wide and its entrenched in sections 1A, 1B, 3A of the Civil Procedure Act. In the case of Alimohamed Haji Suleiman Body Builders Ltd v Jivraj & Another (1990) KLR 224, Justice Bosire held inter alia: -“The exercise of judicial discretion to set aside is unlimited provided it is exercised judicially… The court is vested with the discretion so that in the exercise of it, injustice or hardship resulting from …. Inadvertence or excusable mistake or error may be avoided.”The Judge went on to say: -“It was imprudent on the part of the Advocate to have left the country and remained away for such a long time without any adequate arrangements as to the conduct of his case…. That was however the type of mistake which a court can excuse in order to do justice to the parties in particular case.”

18. Lastly, in the case of Philip Chemowolo &another-vs-Augustine Kubede (1982-88) KAR 103 at 1040, Apalo J. A (as he then was) poised: -“Blunder will continue to be made from time to time and it does not follow that because a mistake has been made that a party should suffer the penalty of not having his case heard on merit. I think the broad equity approach to this matter is that unless there is fraud or intention to overreach, there is no error or default that cannot be put right by payment of costs. The court as is often said exists for the purpose of deciding the rights of the parties and not the purpose of imposing discipline.”

19. The administration of justice should normally require that the substance of all disputes should be investigated and decided on their merit, and that errors, lapses should not necessarily debar a litigant from the pursuit of his rights… it would seem that the main purpose of litigation namely the hearing and determination of disputes, should be fostered rather than hindered. See the case of Branco Arabe Espanolvs Bank of Uganda (1999) 2 EA 22 (SCU). The same sentiments were echoed in the case of Bamanyavs Zaver (2002) 2EA 329 (CAU) where the Judge observed: -“The other principle governing the application …. is that administration of justice requires that all substances of disputes should be heard and decided on merits and for the aforesaid reasons, errors or faults of the counsel should not necessary debar a litigant from enforcing his rights.”

20. The court went on to say, the right to a hearing has always been a well protected right 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 should be proportionality. The appellant in this case was denied a hearing, we have no choice but to allow this appeal as disallowing the same would go against the spirit of the overriding objectives and also the provisions of article 159 of the Constitution. I would have no reason to disagree with the finding by the learned Judge.

21. Before I conclude, I must state and strongly so that the appellant has not been keen in prosecuting the Appeal. It is an old matter which should have been concluded by now, but purely in the interest of justice, I will give the Appellant a chance to prosecute his appeal.

22. In the upshot, the application dated April 6, 2022is hereby allowed giving rise to issuance of the following orders and directions: -i.The order issued on the 17th day of March, 2022 by this court dismissing this appeal for want of prosecution is hereby set aside.ii.The record of appeal filed on March 31, 2022 be deemed as properly filed andiii.The order for stay of execution of the decree is also reinstated pending appeal.iv.The appeal is admitted to hearing before a single Judge.v.The appeal to be disposed of by written submissions. The appellant to file and serve written submissions within 21 days from the date hereof while the respondent should file and serve written submissions within 21 days from the date of service by the appellant.vi.The appeal to be mentioned before the Deputy Registrar of this court on August 24, 2022 to confirm compliance after which the Deputy Registrar will place the file before a judge for judgment writing.vii.Each party to bear their own costs.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 1ST DAY OF JULY, 2022. ..................................J. K. SERGONJUDGEIn the presence of:………………………………. for the Appellant………………………………. for the 1st Respondent