[2015] KEHC 7976 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL DIVISION

CIVIL CASE NO. 74 OF 2009

HOSEA K. KILI...................................................................................PLAINTIFF

V E R S U S

THE NAIROBI STARPUBLICATION LIMITED..............................1st DEFENDANT

NZAU MUSAU………….............................................................2ND DEFENDANTS

RULING

Upon an application by the Defendants for dismissal of the Plaintiff’s suit for want of prosecution, this court (Mbogholi, J) while declining to dismiss the suit, ordered as follows on 18th March 2015:-

“........The Plaintiff should within thirty (30) days of delivery of this ruling, take a demonstrable step towards prosecution of the suit. In default the suit shall stand dismissed for want of prosecution without necessity of any further application.”

As it happened, on 14th April 2015, the Plaintiff fixed the matter for mention on 21st May 2015. On that date, the Plaintiff did not attend court. Counsel for the Defendant sought and obtained an order formally dismissing the suit for failure to comply with the order of 18th March 2015.

Now the Plaintiff has made an application by notice of motion dated 5th June, 2015 for the main order to set aside the orders made on 21st May 2015. The application is supported by affidavits of Leonard Manyonge Matwali and Richard Stephen Malebe, a Court clerk and Advocate in the Plaintiff’s Advocates firm respectively.

The explanation given is that the orders of 18th March 2015 were complied with as the matter was fixed for mention for purposes of pre-trial directions; that due to non-diarization the Plaintiff failed to attend the said mention; that all this was due to inadvertence and or excusable mistake of the Counsel which should not be visited upon the innocent litigant.

The Defendant has opposed that application by filing the Replying Affidavit sworn by William Pike, the Chief Executive Officer of the 1st Defendant on 11th June 2015. The grounds emanating therefrom include -

That the suit stands or is deemed dismissed with costs in accordance with the order of 18th March 2015 and the setting aside of the orders of 21st May 2015 will have no effect on the ruling and orders of the court.

That on 7th May 2015 his Advocates received a mention notice indicating that the matter would be mentioned on 21st May 2015 to which they responded with a protest letter indicating that the Court was functus officio owing to the orders of 18th March 2015.

That the Plaintiff’s advocates neither responded to the said letter nor attended court on the date of mention.

That the reasons advanced by the Plaintiff for not attending the mention which they had sought exparte are untenable as they received a protest letter from the Defendants’ Advocates a week prior to the mention date.

That even having the ruling couched in mandatory terms, it is only three weeks from the date of the ruling that the Plaintiff made the first attempt through a letter to the Deputy Registrar requesting for a mention date. The Plaintiff did not see the need to move the court in an appropriate manner befitting situations of urgency in view of the approaching deadline within which to comply with the court’s orders.

That the Plaintiff is guilty of inordinate and inexcusable delay which has led to their disobedience of the Court order requiring him to take action.

That a civil case once filed is owned by a litigant and not his advocate and that therefore the remedy for the mistakes of his advocates is against those advocates.

For the courts consideration is whether this is a proper case for the court to use its discretion under Section 95 of the Civil Procedure Act which provides –

“Where any period is fixed or granted by the court for the doing of any act prescribed or allowed by this Act, the court may, in its discretion, from time to time, enlarge such period, even though the period originally fixed or granted may have lapsed.”

Having considered the submissions of the learned Counsels appearing, it is my view that the wording of the order of 18th March 2015 provided that the suit would automatically stand dismissed in the event of the Plaintiff’s failure to take demonstrable steps towards prosecution of the case. I agree with Counsel for the Defendants that upon realizing that he would not have made any tangible progress in the suit as ordered, and wishing to seek for enlargement of the 30 days, it was incumbent upon the Plaintiff to apply for an early mention date or such enlargement before expiry of the 30 days.

As it were, the Plaintiff only wrote letters to the Deputy Registrar and apparently visited the registry to fix the matter for mention. He actually got a mention date for 21st May 2015 where this court formally dismissed the suit which order did not alter the fact that the suit already stood dismissed on 18th April 2015. Predictably, the Counsel did not attend Court on the said mention date.

The Plaintiff in my view should not be allowed to always belatedly seek the court’s discretion after avoidable gaffes as the court does not assist the indolent.

The order sought for setting aside the order of 21st May 2015 is in the nature of review. No proper ground has been advanced upon which this Court can properly set aside the dismissal of the suit. The dismissal was the natural consequence of the Plaintiff’s indolence and failure to obey the Court order. The suit stands dismissed. The notice of motion dated 5th June 2015 therefore lacks merit and is dismissed with costs to the Defendants.

It is so ordered.

Dated and delivered at Nairobi this 6th Day of November, 2015.

A.MBOGHOLI MSAGHA

JUDGE