[2023] KEHC 27466 (KLR)

In re Estate of Joab Odero alias Joab Odero Odero (Deceased) (Succession Cause 227 of 1993) [2023] KEHC 27466 (KLR) (10 November 2023) (Ruling)

Neutral citation: [2023] KEHC 27466 (KLR)

Republic of Kenya

In the High Court at Kisumu

Succession Cause 227 of 1993

MS Shariff, J

November 10, 2023

Between

Jane Adhiambo Odero

Applicant

and

Mark Opiyo Odero

Respondent

Ruling

1. This ruling is on the Notice of Motion dated 17th march, 2023 in which the applicant seeks the following reliefs;a.The honourable court be pleased to set aside the orders of 16/3/2023, dismissing the notice of motion application dated 27/2/2023 for want of prosecution and non-attendance.b.The court be pleased to reinstate the application dated 27/2/2023. c.Costs be in the cause

2. The application is supported by the affidavit of D. Rakoro, learned Counsel appearing for the applicant in which Counsel depones that the application dated 27/2/2023 was slated for inter parties hearing before Shariff J on 16/3/2023 whereupon on that day, they had not received any response to the application and indeed physically attended court despite the matter not being cause listed for that day which had commenced sitting at 8. 30 am.

3. That upon inquiring from the court assistant about the file, he was informed that the file was still at the registry and one Mr. Ojenga Counsel offered to assist in tracing the file from the registry. That he requested the court assistant and the said Mr. Ojenga to have the matter placed aside to enable him address the court once he was done with another matter he was handling at the Employment and Labour Relations Court.

4. That after attending the matter above, he came back to this matter and found the matter had been called out in his absence and the matter dismissed for non-attendance. He thus depones that his absence from court was not deliberate but caused by circumstances beyond his control and beseeches the court not to penalize an innocent litigant.

5. Mark Opiyo filed a replying affidavit deponing inter alia that he attended court with his advocate on the date set for hearing of the application when neither the applicant nor her counsel appeared in court thus the dismissal. That the reasons advanced for non-attendance are not sufficient as Counsel was aware of the matter but chose to attend another matter in a court of equal status. That counsel ought to have made arrangements for another advocate to attend to this matter and finally that a reinstatement of the application dated 27/2/2023 will greatly prejudice him in light of the pending appeal he has already lodged in the Court of Appeal.

6. By directions of the court, the application was canvassed by way of written submissions.

7. The applicant submits that the non-attendance was not deliberate and that the respondent shall not suffer any prejudice if the same is allowed as he had not responded to the application. That the instant application for reinstatement was filed promptly.

8. Counsel implores the court to consider the provisions of Order 12 Rule 7 of the Civil Procedure Rules and the decisional authorities in Ngugi V Thogo (2021) KECA 88, James Lenawanchigel (suing as the administrator of the estate of the late Mambasa Lanauwaitingeil-deceased) V Gulsan Insaat Sanayi Turizm & another (2021) eKLR and Reynold construction Co. ltd (Nig.) V Festus M’arithi M’mboroki (2022) eKLR.

9. It is submitted by the Respondent that the application for eviction is an abuse of the court process in that the court had on 6/2/2023 given an order of stay of execution till the appeal is determined. That the court lacks jurisdiction to issue eviction orders and cites the authority in Re estate of Laban Mogire Magogo (deceased) (2020) eKLR.

10. He also submits that the court is functus officio since the court already rendered its judgement and has no business entertaining applications seeking prayers not sought in the original pleadings. He relies on the authority in John Gilbert Ouma V Kenya Ferry Services (2021) eKLR.

Analysis and determination. 11. The issue that lends itself for determination in this application is whether the Applicant is entitled to an order of reinstatement of the application dated 27th February 2023, or alternatively, whether the Applicant is entitled to an order of setting aside of the order issued on 16th March, 2023 dismissing his application aforesaid.

12. A perusal of the record reveals that the application came up for hearing inter-parties before this court on 16/3/2023 in the presence of Mr. Ongonga for the Respondent and in the absence of the Applicant and his Counsel wherefore the court dismissed the application for want of attendance.

13. Dismissal for non-attendance is governed by Order 12 Rule 1 which provides;“If on the day fixed for hearing, after the suit has been called on for hearing outside the court, neither party attends, the court may dismiss the suit.”

14. An application for reinstatement of a suit dismissed under Rule l is governed by Rule 7 which provides;“Where under this Order judgment has been entered or the suit has been dismissed, the court, on application, may set aside or vary the judgment or order upon such terms as may be just”.

15. The above-cited rule vests this court with the discretion to interrogate the grounds upon which the application is premised upon and may proceed to reinstate the application on set terms. In the instant application, the applicant deposes that counsel was held up in another court and only came to find the application dismissed.

16. The Respondent asserts the dismissed application would have occasioned him immense suffering as there are orders of stay.

17. The issue at this juncture is whether the dismissed application can be reinstated and not whether this court functus officio. The merits of the application will be deliberated upon if the application is ultimately reinstated.

18. The extent of the discretion to be exercised by the court was explained in Shah vs Mbogo (1979) EA 116 thus;“......this discretion is intended to be exercised to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake or error, but is not designated to assist a person who has deliberately sought, whether by evasion or otherwise to obstruct or delay the cause of justice.”

19. I note that the instant application was filed on 17th March, 2023, a day after the order of dismissal was given and the applicant therefore moved with speed.

20. My analysis of the material on record shows that there is no harm that the respondent is likely to suffer if the application is reinstated. As much as possible, courts ought to balance the rights of parties before it to ensure everyone is heard fairly as demanded of it by Article 50 of the Constitution as the ultimate goal of the court is to do justice to all parties.

21. I am also alive to the calling under Article 159 (2) (b) of the Constitution which mandates the courts to administer justice without undue regard to technicalities of procedure, which calling aimed at advancing the administration of justice to parties.

22. Taking the circumstance of the case at hand, I find that an order of setting aside of the order of 16th March, 2023 is necessary in the circumstances of the case so as to enable the parties the opportunity to sufficiently ventilate their issues in relation to the application so dismissed.

23. I therefore reinstate the same and I order that the Applicant does move with adequate speed and have the application dated 27th February, 2023 fixed for hearing on priority basis due to the age of the matter. Due to the fact that the respondent had not file a response to that application, I order that each party shall bear its own costs of this application.

Delivered, dated and signed at Kisumu this 10th day of November 2023. ********MWANAISHA S. SHARIFFJUDGERuling in Succession Cause No. 227 of 1993 3