[2017] KEHC 2472 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYAAT NAIROBI

CIVIL CASE NO. 3095 OF 1996

FRANCIS J. NGIGE............................................................ APPLICANT/PLAINTIFF

VERSUS

MADISON INSURANCE COMPANY (K) LTD….…. DEFENDANT/RESPONDENT

RULING

The plaintiff/applicant has moved this court by way of a Notice of Motion dated the 5th August, 2016 seeking the following orders.

1. The order of the Honourable Court given on 23rd June, 2016 dismissing this suit be set aside and the suit be reinstated for hearing.

2. Costs of this application be provided for.

The application is premised on the grounds set out in the body of the application and its supported by the annexed affidavit of Nancy Njeri Macharia Advocate, sworn on the 5th August, 2010.

The grounds in support of the application are that failure by the Counsel for the applicant to attend court on the 23rd June, 2016 when this matter was dismissed for want of prosecution, was inadvertent and was occasioned by the matter being listed in two different courts.

That upon making inquiry at the court registry, Counsel for the applicant was informed that the suit would be heard before Thuranira J but the file was not in court on that particular day. Counsel was informed that the matter would be listed on another date but according to him, the suit was not listed again during the service month and he only learnt on 4th August, 2016 that the matter was dismissed on the 23rd June, 2016 by Hon. Justice Njuguna.

It is averred that the suit was not listed for hearing on the date when it was dismissed.

The defendant has opposed the application vide a replying affidavit sworn by Lilian Munyirir on the 3rd October, 2016. She avers that the suit was dismissed during the judicial service month and prior to the dismissal, the court had issued notices of dismissal of suits for want of prosecution and the suit herein happened to be among those listed for dismissal.

That on the 23rd June 2016, the matter was listed before Mrima J but it was handled by Justice Njuguna in the absence of the Counsel for the plaintiff but in the presence of Counsel for the defendant, it was dismissed for want of prosecution.

It is contended that the suit was filed way back in the year 1996 and the plaintiff has not been keen in prosecuting the same and that it is the defendant’s Counsel who has been prompting the plaintiff’s Counsel to list the matter for mention but no response has been forthcoming from them.

The application was disposed off by way of written submissions. I have considered the application and the submissions filed herein. It is contended that the application was brought without undue delay from 4th August, 2016 when Counsel for the plaintiff learnt about the dismissal of the suit. In support of this contention, the case of Joseph N/K Arap Ng’ok & Another Vs EABS Bank limited (2015) eKLR was relied on. The case of Mwangi Vs A.G & Another (2014) eKLR was also cited.

In further submissions Counsel for the plaintiff referred the court to order 12 Rule 7 of the CPR that empowers the court to set aside an order of dismissal in a merited case upon such terms as may be just. Reference was made to the case of Kithaka Nothiaga & 2 others Vs Nyaga Matuhuki (2013) eKLR and that of Samwel Eustate Wachira Murage & another Vs Dephis Bank Ltd (2013) eKLR.

On his part Counsel for the defendant submitted that the court in dismissing the suit, properly exercised its discretion and it has not been shown otherwise. The case of Hot wax Hotels Limited Vs Nairobi City Council HCCC No. 1180 or 2000 (2005) eKLR and that of Mbogo & Another Vs shah (1968) EA were cited.

It was averred that prior to year 2012 the plaintiff had taken no action to prosecute the suit and no valid reason has been given by the plaintiff as to why he failed to set down the matter for hearing.

From the material before the court, it is clear that since the year 2012, no action had been taken in the matter until the 23rd June 2016 when it was listed for notice to show cause and it was dismissed for want of prosecution. Though the matter was listed before Mrima J, it was handled by Justice Njuguna and the record shows that Counsel for the defendant was present in court. It is not therefore true that the matter was not listed before a Judge on the material day.

The court has also noted that since the year 2012 no action had been taken in the matter by the Counsel for the plaintiff and no explanation has been offered whatsoever. However, the application herein was filed without undue delay and its only fair that the plaintiff be granted a chance to prosecute the suit. In the case of Johnson Ndungu B. Njoroge Vs George Waweru Muchai (2014) eKLR where the court held;

“In conclusion, denying the Appellant a forum to ventilate his grievances ousts him from the seat of Justice. His timeous action to reinstate the suit is a clear indication that he has not been hell bent to frustrate the course of justice.

And that of Samwuel Eustance Wachira (Supra) where the court held

“….. It must be borne in mind that refusal by a court to allow a party to ventilate its case especially where its legal representative has done and/or omitted to do something to its detriment is very drastic action. It is trite law that a party must be given a fair and reasonable opportunity to present its case and should not be penalized for the omissions or commissions of its legal representation.

In view of the aforegoing the application dated 5th August, 2016 is allowed as prayed but the plaintiff is ordered to pay costs of ksh 15,000 to the defendant to be paid within 14 days from the date of this order. The matter be and is hereby transferred to the Employment and labour relations court for hearing and final determination.

Dated, Signed and Delivered at Nairobi this 3rdDay of November, 2017.

………….......

L. NJUGUNA

JUDGE

In the Presence of

……………………….For the Applicant

……………………….For the Defendant