[2007] KEHC 1648 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT

AT MOMBASA

CIVIL SUIT 15 OF 1994

GITUTHO ASSOCIATES AND 3OTHERS..................... PLAINTIFFS

- Versus -

ARTHUR K. MAGUGU

INN OF INNS LIMTED.................................................... DEFENDANTS

RULLING

The Plaintiff's suit was dismissed on 24. 5.1999 when it was due for hearing and the Plaintiffs nor their Advocate were absentwhen it was called out inside and outside the court. Only thedefendants' Advocate was present in court but did not admit anypart of the claim on behalf of the defendants. The defendantshowever had a counterclaim but offered no evidence thereon. Theirsuit was also dismissed.

It is the plaintiffs however who soon thereafter made afrantic effort to have the suit reinstated. In the process, whether by design or ignorance, they filed a Miscellaneous Civilapplication on 26. 5.99 (two days later) seeking to set aside the dismissal and obtained temporary relief ex parte. That miscellaneous Application was struck out when it came up for inter parte hearing on 17. 6.99 as it was totally misconceived. The Application ought to have been filed in this same matter.

And it was the following day on 18. 6.99, that is theapplication argued on 12. 10. 99 and the subject matter of hisRuling,

The explanation for non-attendance at the hearing is given bythe plaintiff's Advocate Gikandi Ngibuini who swore the supportingAffidavit and made submissions in court on their behalf. He wasaware of the hearing date, having taken it by consent and hadinformed his clients to meet him at his chambers on the morning ofthe hearing so that they can all troop together to court. Despiteall those arrangements. Some traumatic events took place thepreceding week necessitating the departure of Mr. Gikandi fromMombasa to his home area. His brother who was doing business inAngola was kidnapped in that country and was later found murdered.He travelled for a family meeting on Saturday 21. 5.99 intending toreturn on Sunday 23. 5,99 ready for the hearing on 24. 5,99. Heswore that before his departure he had made provisionalarrangements with one of his assistants to attend court on the24,5. 99 in the event that it was. not possible to make the returnjourney on time. But the Assistant, unknown to Mr. Gikandi wasalso attending the wedding of another Advocate in Nairobi andintended to be back by Monday. As fate would have it however bothof them met in their office on Monday morning at 9. 15 a.m., minutesafter the suit had... been, called out in court and dismissed. Theyboth arrived in court at 9,30 a.m.

Mr. Gikandi!s explanation was that he drove back at night andarrived in the early hours of Monday. He arrived in his chambersat 9. 15 a.m. and found his clients waiting. He thought hisassistant was already in, court and would alert the court about hispredicament. But the Assistant soon arrived in chambers to tellabout his own woes that the bus he was travelling in broke down atAthi River. In those circumstances Mr.Gikandi pleaded profusely that those were human errors which were unintended andcaused no prejudice, He related the history of the matter frominception in 1994, to the Court of Appeal and back to the HighCourt to show' that the plaintiffs have always been interested inpursuing their claim and were ready to prove it on any early dateset by the court. The clients had nothing to do with the failureto attend court on 24. 5,99 since they were only following theirAdvocate's advice that they should call at the Advocate's chambersand wait to accompany the Advocate to show them the proper court-room. He was ready to personally bear all costs thrown away.

A further order is prayed for to reinstate a guarantee put inplace with the consent of the parties when the matter went onAppeal to the Court of Appeal. There was an attempt to have itdischarged and the money released after dismissal of the suit butthe status quo was preserved until after the decision in thismatter.

Counsel for the defendants Mr. Musinga saw no merit at all inthe factual explanations given or the exhortation made to reinstatethe suit and the guarantee. He saw contradictions in the Affidavitsworn and the submissions made in court. In one breath it wouldappear Mr. Gikandi was in his chambers as early as 9 a.m. when he saw the cause list but presumed that the hearing of the case would come up at 9. 30 a.m. In another breath he came at. 9. 15 a.m. and met his Assistant who was supposed to have been in court already.He swore that in private discussions after Mr. Gikandi came tocourt at 9,30 a.m. and met him, Mr. Gikandi informed him that hisclients werenot in his chambers but in their own offices, Eitherway they should have been in court and not in Advocates chambers or their offices. Such contradictions,- he submitted., smacked ofuntruths being presented before the court, Mr. Musinga did notdispute the matter of death of Mr. Gikandi's brother but thought itwas being raised to merely whip up sympathy since the Advocate wasin his office in the morning of the hearing date. He also has morethan one other legal Assistants who could have been instructed toattend court on time. He attributed the filing of the earlierMiscellaneous Application to bad faith since it was not served onhis firm soon after it was filed although exparte orders wereobtained, finally he was of the view that the plaintiffs have nointerest in pursuing their claim and there was no useful purpose inreinstating the guarantee. That guarantee in any event was givenby consent of the parties and the court has no jurisdiction toreinstate it., he submitted.

I have considered the Application fully and the submissions ofCounsel. It is common ground that this court has a perfectly freediscretion to set aside its order of dismissal of suit for non-attendance of a party on the hearing date. That discretion howeveris for exercise judicially and is intended in the words of Shah -v-Mbogo (1967) EA 116

"'. ... to avoid injustice or hardship resultingfrom accident,- inadvertence or excusablemistake or error, but is not designed toassist the person who has deliberately sought,whether by evasion or otherwise, to obstructor delay the cause of justice",

Imust therefore not only consider the explanation for the immediate cause of dismissal but also the antecedents of the party applying to see if he has exhibited traits of obstruction", evasion or delay of the cause of justice in this matter,

The Applicants' Counsel swore that he was in a state ofconfusion following the traumatic events surrounding his latebrother at' the same time this matter came up for hearing. TheRespondents' Advocate's Counsel thought that was irrelevant and didnot amount to accident, inadvertence, excusable error or mistakewhich may afford a party favourable treatment. That may well be acallous approach to the issue as it is not entirely irrelevant., butI agree that it offers no full absolution to Counsel. On the factsit was possible for the Applicants' Counsel to make alternativearrangements to ensure that the court is appraised of hisdifficulties in good time. I accept the explanation given that theclients themselves were not to blame for accepting the advice thatthey shall wait to accompany the Advocate to court. It would havebeen more prudent nevertheless to advice them to be in court asthere is no difficulty in locating court rooms which are dailydisplayed on the cause list, I have examined the entire record since the suit was filed inJanuary 1994. There is no doubt that plenty of water has goneunder the bridge and it would appear, for explicable reasons., noneof which expose any obvious, deliberate and contumacious conduct onthe part of the plaintiffs. There would otherwise have beenapplications made for dismissal of the' suit for want of prosecutionor the defendants would have sought to have the matter heard as itinvolves a counterclaim which presumably had parity of importanceto the defendants. I say presumably because although thecounterclaim should have been heard on the same day as theplaintiffs' case, the defendants' witnesses were not present either and no evidence was offered. After dismissal no application wasmade to reinstate it. Iwould have upheld that order as final ifI was not inclined to reinstate the plaintiffs' suit.

In all the circumstances however I am inclined to exercise mydiscretion in favour of the plaintiffs/applicants, I set aside theorders of dismissal of the main suit and of the counterclaim andreinstate the status quoante. That includes the validity of theguarantee which was put in place by consent of the parties and wasmade an order of the court. It can only be set aside onapplication satisfying the same grounds that would suffice inimpeaching a contract.

As I find, despite the compassion warranted by the traumaticcircumstances put forward by Mr. Gikandi, that he was not entirelyblameless,I order that he will personally bear all the coststhrown away including the costs of this application which, if notagreed, shall be taxed. I further order that the suit shall befixed for hearing for three days and be finalized before the end ofthe current session on 21. 12. 99. It is one of the oldest cases inthe Registry.

Orders accordingly.

Dated at Mombasa this 21st day of October, 1999.

P.N. Waki

JUDGE

21/10/99

Coram: Waki, J.

Gikandi forApplicantMusinga for Respondentcourt clerk - MutuaRuling delivered dated and signed in open court.