[2024] KEHC 1283 (KLR)

Darson Trading Limited v Oketch (Civil Appeal E004 of 2023) [2024] KEHC 1283 (KLR) (16 February 2024) (Ruling)

Neutral citation: [2024] KEHC 1283 (KLR)

Republic of Kenya

In the High Court at Busia

Civil Appeal E004 of 2023

WM Musyoka, J

February 16, 2024

Between

Darson Trading Limited

Appellant

and

Daniel Onyango Oketch

Respondent

(An appeal arising from orders made by Hon. PA Olengo, Senior Principal Magistrate, SPM, in Busia CMCCC No. 352 of 2021, on 17th February 2023)

Ruling

1. The application for determination is dated 24th October 2023. It seeks reinstatement of an application, dated 9th October 2023, that had been dismissed for want of prosecution. The said application was dismissed on 19th October 2023. It is averred that the appellant had not been served by the court with a hearing notice, requiring it to attend court on 19th October 2023, and that the notification it had was for a hearing on 24th October 2023. It is averred that it was on 24th October 2023 that the appellant established that its application, dated 9th October 2023 had been dismissed on 19th October 2023. It is argued that the court has wide discretion to set aside its orders.

2. The respondent replied. He argues that it was the appellant who moved the court by the application, dated 9th October 2023, and it was incumbent upon it to follow up on what had happened to its matter. He avers that as the application was coming up for inter partes hearing on 19th October 2023, and the appellant did not attend court to prosecute it, the court was at liberty to dismiss the application.

3. The application was canvassed by way of written submissions.

4. This is one of those cases where parties blame the court, after they mess up their own cases. Litigation is driven by the parties, not the court, because the cases belong to the parties, not the court. A party who files process, and then goes to sleep, only to wake up and find that their case was dismissed for inaction, can only blame itself, and not the court. Perhaps I should be a little blunt, and refer more specifically to Advocates, for it is them who file matters in court on behalf of their clients. It is not uncommon for some Advocates to fail to follow through with the directions given by the court, and they turn around and blame the court for their own mess, as a way cleansing themselves in the eyes of their clients. It is a most unfortunate circumstance.

5. The application, dated 9th October 2023, was filed under certificate of urgency, and was placed before the Judge, on 12th October 2023, for him to assess its urgency. The Judge evaluated it, and considered it urgent, and hence allocated it a very near date, 19th October 2023. That was informed by the fact that the Deputy Registrar had fixed a bill of costs for hearing on 24th October 2023, and the appellant, no doubt, by its application of 9th October 2023, wanted orders from the Judge which would have forestalled the taxation, hence the consideration that that application was urgent, and merited hearing before the taxation on 24th October 2023. It is the appellant who moved the court, under certificate of urgency, and it was the duty of the appellant to follow up, with the court registry, to find out the directions that the Judge might have made on the certificate. It is not the duty of the court to inform the parties about those directions. The appellant should have followed up. It moved the court for a certification of urgency, and the court acted on its certificate, but the appellant went to sleep and did not seek to find out what had become of its certificate.

6. The appellant suggests that the court had earlier given it, and notified it of a court attendance on 24th October 2023, but was not notified about 19th October 2023. The processes that were to happen on 19th October 2023 and 24th October 2023 were different. The 19th October 2023 date was for an appearance before the Judge, on an application, that had been filed under certificate. The 24th October 2023 was a date for taxation, not before the Judge, but before the Deputy Registrar. That date had been given by the Deputy Registrar on her own motion, that is without being moved by the parties, there was a duty to notify the parties, which was done. 19th October 2023 was given by the Judge, after being moved, under certificate by the appellant. There was no duty on the part of the court to notify the appellant of the directions given, on 12th October 2023. The party who had moved the court should have followed up with the registry, and more particularly with the Judge’s court assistant.

7. This is an unfortunate case of laxity and indolence, I should say, with respect, on the part of the Advocate for the appellant, who should know these processes. He has no one to blame, save himself, for letting his client down, by not following up on his filings with diligence. If you move the court for a date or some order, then the court grants you your request, then you do not act as directed, you can only blame yourself.

8. Be that as it may. In the interests of justice, I shall allow the application, dated 24th October 2023, with costs to the respondent. I shall allocate a date for directions, at the delivery of this ruling. Orders accordingly.

DELIVERED, DATED AND SIGNED IN OPEN COURT AT BUSIA ON THIS 16TH DAY OF FEBRUARY 2024WM MUSYOKA..................................JUDGEI certify that this is a true copy of the originalSignedDEPUTY REGISTRARAppearancesMr. Osoro, instructed by Osoro Juma & Company, Advocates for the appellant.Mr. Okutta, instructed by Ouma-Okutta & Associates, Advocates for the respondent.Mr. Arthur Etyang, Court Assistant.