[2022] KEELC 652 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT & LAND COURT AT KITALE

ELC NO. 108 OF 2018

JOB CHEBOR TUIKONG.............................................PLAINTIFF

VERSUS

JUA KALI ASSOCIATION...................................1STDEFENDANT

SOLOMON KAIRUKI.........................................2ND DEFENDANT

PATRICK WANJALA.........................................3RD DEFENDANT

THE COUNTY COMMISSIONER

TRANS-NZOIA COUNTY..................................4TH DEFENDANT

THE COUNTY GOVERNMENT OF

TRANS-NZOIA.................................................5TH DEFENDANT

THE ATTORNEY GENERAL........................6TH DEFENDANT

RULING

(On Setting Aside Orders of Dismissal ofSuit for Non-Attendance)

THE APPLICATION

1. The Plaintiff filed the Notice of Motion dated 09/11/2021 on 12/11/2021. It invoked Articles 48 and 50 of the Constitutionof Kenya,2010, Sections 3 and 3A of the Civil Procedure Act and Order 12 Rule 7 of the Civil Procedure Rules, seeking the following reliefs:

a) …spent

b) ….spent

c) THAT this Honorable Court be pleased to set aside the ex-parte orders issued on 21/10/2021 dismissing the Plaintiff’s suit for want of prosecution and all other consequential orders emanating thereto;

d) THAT pursuant to granting of prayer (c) above, the Plaintiff’s suit be reinstated and set down for hearing on merits on such dates convenient to all the parties.

e) THAT costs of the Application be provided for.

2. The Application was supported by the grounds at the foot of the Application, the Affidavit of the Plaintiff, one Job C. Tuikong and one by his learned Counsel, J. K. Kiplagat Advocate. In the Application it was contended that the suit was dismissed for want of prosecution on 21/10/2021 in the absence of the Plaintiff and his Counsel. The Plaintiff stated that he and his Advocate were unable to participate in the proceedings virtually as they were unaware of the said date. He argued further that they were not made aware as to whether the matter would proceed in court or virtually. He stated that his efforts to particulate online were met with futility. He lamented that his Counsel was unable to retain the services of an Advocate in court on that day to hold his brief.

3. The Plaintiff further attributed his non-attendance to the COVID-19 Pandemic citing that two of his family members succumbed to it. He deposed that he was of advanced age and maintained that since he was vulnerable, he ought to only participate in court proceedings virtually. He deponed that prior to the pandemic, he avidly attended all court sessions in this matter.

4. The Plaintiff further maintained that he was interested in prosecuting this suit to its logical conclusion. His deposition was that the consequential effect of dismissing the suit was tantamount to condemning him unheard contrary to the principles of natural justice espoused in Article 159 (2) (d) of the Constitution. He lamented that he stood prejudiced and stood to suffer substantial loss as long as the dismissal orders remained.

5. The Plaintiff further averred that the Respondents stood to suffer no prejudice if the orders herein sought were granted. He posited that it was in the interest of justice that the suit be reinstated. The Plaintiff’s learned counsel deposed that he was unable to advise the Plaintiff on the hearing date in open court as it was not clearly indicated in the email of 01/07/2021.

THE RESPONSE

6. The Application was opposed. The 1st Defendant, through its Chairman Silas Nambilo, filed a Replying Affidavit on 03/12/2021. It was sworn on 14/11/2021. He deposed that the case was listed for hearing on 06/04/2020 but was mentioned on 02/06/2021. He averred that the Plaintiff had every intention to have the suit withdrawn. He annexed SN1, a letter from the Plaintiff’s Counsel dated 13/05/2021 to that effect. He maintained that the 1st Defendant remained the lawful proprietor of the subject parcel of land. He proposed that the Application be dismissed as the suit is a waste of the court’s judicial time.

7. The 2nd, 4th and 6th Defendants filed their joint response by way of Grounds of Opposition. The grounds were dated 26/11/2021. They contended that the Application was bad in law and fatally defective. They stated that the Plaintiff failed to give reasons to compel the court to invoke its discretionary powers. They added that the Plaintiff failed to demonstrate that they were unaware of the hearing notice for 21/10/2021. They indicated that the cause list was bereft of any misconceptions as it was clear that the matter was listed for hearing. They urged this court to dismiss the Application with costs.

SUPPLEMENTARY AFFIDAVIT

8. The Plaintiff filed a Supplementary Affidavit sworn on 11/02/2022. He filed it on 14/02/2021. He deposed that courts were not sitting on 06/04/2020. He averred that the subject matter remained alive since he is the lawful proprietor of the subject parcel of land adjacent to the property belonging to the 1st Defendant. He decried the order of dismissal of the suit and maintaining that the non-attendance was not attributed to any fault on his part or that of his Advocate. He avowed that the 3rd Defendant and not Silas Nambilo was the 1st Defendant’s chair.

SUBMISSIONS

9. On 15/11/2021, this Court directed parties to canvass the Application by way of written submissions. The Plaintiff filed his submissions on 19/11/2021. The 1st Defendant filed its submissions on 03/12/2021. On 14/02/2022, the Plaintiff filed what he termed as a Reply to the 1st Defendant’s Submissions.

10. In summary, the submission centered on the provisions cited and the facts of the Application. The Plaintiff relied on the provisions of Article 159 of the Constitution for the proposition that in dispensing fairness and justice, this court has power to set aside orders made ex-parte. He added that the provisions of Order 10 Rule 11 and Order 12 Rule 7 of the Civil Procedure Rules grant court unfettered discretion to set aside ex-parte judgments and orders. In furtherance of this submission, the Plaintiff added that he was, by the unfortunate turn of events of the COVID-19 pandemic, discouraged from any form of human contact. He explained that earlier he lost his wife and son to the Pandemic. He said that due to his advanced age he was advised to isolate himself. He narrated that when the matter was listed for hearing on 21/10/2021, his Advocate was unable to attend court either virtually or physically. Moreover, his Counsel was unable to instruct any other Counsel to hold his brief.

11. Additionally, the Plaintiff submitted that his Advocate attempted to attend court on the said date but all efforts were futile. He lamented that the persistence of the orders of 21/10/2021 would perpetually condemn him unheard. He added that he was unaware of the hearing being in open Court only. He urged this court to set aside the dismissal order and reinstate the suit for hearing. He cited the provisions of Article 48 and Article 50 of the Constitution for this proposition.

12. The 1st Defendant reiterated the contents in its Replying Affidavit. He emphasized that the Plaintiff perjured in the proceedings. He maintained that the subject parcel of land was acquired by the 1st Defendant. He submitted that the Plaintiff had every intention of withdrawing the suit. Consequently, to revive the suit would contradict their very intention of having this matter come to a close.

13. In his reply submissions, the Plaintiff stated that courts were temporarily closed when the matter was listed for hearing on 06/04/2020. This was attributable to the COVID-19 Pandemic. He was adamant that he reclaimed the suit property and is in possession thereof. He maintained that he was not served with the hearing noticehence the failure to attend court was not a fault of his own or his Counsel. Finally, he beseeched this court to reinstate the suit as there was only one pending issue for determination.

ANALYSIS AND DETERMINATION

14. I have considered the Application and respective parties’ Affidavits herein. I have also considered the respective rival submissions, the law and authorities cited by parties. I now wish to address the Application as hereunder.

15. The present Application seeks to set aside this court’s order of 21/10/2021dismissing the suit for want of prosecution. It is worthy of note that the import of the Application was incorrect. The suit was not dismissed for want of prosecution but due to non-attendance of the Plaintiff on the date of hearing. The Applicant then prays for reinstatement of the suit for hearing and determination on merits. To this end, the Plaintiff’s submission on Order 10 Rule 11 of the Civil Procedure Rules is inapplicable to the facts and circumstances of this case. The provision is in regard to setting aside judgment entered against a party in default of appearance and defence or default of service of the same. That is not what the case was.

16. Order 12 Rule 7 of the Civil Procedure Rules is reproduced hereunder as follows:

“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.”

17. Under the said provision, the court has unfettered discretion to set aside an order it has made, if sufficient cause is shown by an Applicant. The principles governing setting aside such orders are well settled. In regard to that, in Shah v. Mbogo & Another [1967] EA 116 the Court held thus:

“I have carefully considered, in relation to the present Application, the principles governing the exercise of the court’s discretion to set aside a judgment obtained ex-parte. This discretion is intended so to be exercised to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake or error, but is not designed to assist a person who has deliberately sought, whether by evasion or otherwise, to obstruct or delay the course of justice.”

18. Turning to the instant Application, the Plaintiff raised several antithetical reasons to justify the exercise of the discretion of this Court. Firstly, the Plaintiff, through his learned counsel he argued that both were unaware of the hearing date. The Plaintiff later changed his mind on this. This must have dawned on him that there was clear evidence of service of the hearing notice. His Advocate acknowledge the fact that the Court serve him with a hearing notice through email. The Court record shows that the email was sent out on 01/07/2021 at 13:19 hours. Thus, both finally admitted that they were aware of the hearing date: the notice served upon his Advocate was equivocal. I reproduce the contents of the said hearing notice by electronic mail dated 01/07/2021 verbatim:

“Good afternoon,

Please note the above-mentioned case shall have hearing of the main suit on 21st October 2021.

Make arrangements to attend court.

Best regards.”

19. I see not incertitude in the contents of the email. Even if we were to give the Plaintiff a benefit of doubt, I still find that he or his Counsel were within their right to seek further clarity on the contents of the email that was sent over three (3) months prior to the hearing date. The Plaintiff cannot cry foul over his inaction or failure to obtain further elucidation as to the ambiguity he now claims were ostensible when the hearing notice was served.

20. Moreover, on 14/10/2021, learned counsel for the Plaintiff wrote to the Court attaching a letter written by the Kenya Railways Corporation on 05/10/2021 to the effect that survey of the parcel of land in question had been done and all illegal structures demolished. Further that all title deeds encroaching or overlapping were to be revoked. He filed both on 15/10/2021. By that time the Plaintiff was well aware of the hearing notice as he placed the letter on the Court file. He cannot deny this fact because by that time the files for hearing the coming days had already been selected in the registry and arranged accordingly.

21. The reasons do not end there. Upon realizing that the notice was duly served, he and his counsel devised other explanations for failure to attend Court. The Plaintiff’s counsel stated that he tried to attend court virtually but all his efforts were fruitless. How that happened or what transpired is not explained by this statement. It would have been credible for his Advocate to explain the circumstances that led to the difficulties, if any, that ensued. In the alternative he could have presented evidence to this effect. He failed to.

22. The Plaintiff’s learned counsel indicated further that he attempted to instruct an Advocate to hold his brief but inadvertently failed. If there is a statement that is unbelievable, it is this one. Counsel did not state which Advocates he tried to contact but failed. Perhaps counsel forgot to recall that the mobile providers have printouts to show which people are called at and the calls either go through or fail. Therefore, similarly, and regrettably, no evidence was advanced to support this assertion.

23. Finally, the Plaintiff turned to another thread to hang on. At one time he argued and insisted that he was not aware of the hearing date. But he also contended that he did not attend Court since he was of advanced age and because of the COVID-19 Pandemic, safety and health guidelines required that he isolates himself and so he could not have attended Court. I find this to be another untruth. If he was not aware of the hearing date there is no way he could have thought of attending the hearing online. Again, elsewhere, he argued that he thought that the suit could be heard online. Clearly, the Applicant was groping in darkness over the best possible excuse he could advance in this Application. With due respect to the Plaintiff and his Counsel, the reasons given by the Applicant do not amount to sufficient reason to make this Court exercise its discretion in favour of him.

24. It is only clear and beyond peradventure that the Plaintiff set out on a fishing expedition. He basically asked this court to cast a net and catch any fish at sea. What is clear is that the Plaintiff failed to take proper or adequate steps to prosecute his case and has no one to blame but himself. Moreover, as stated by the Respondents, earlier on the Plaintiff had indicated to this Court both in writing and through learned counsel who attended Court on 19/05/2021 that this suit had been overtaken by events. To be clear, there is no doubt that on 13/05/2021 learned counsel wrote to the Deputy Registrar a letter stating as follows, “This is to notify you that this suit has been overtaken by events in that the disputed portion has not been taken over by Kenya Railways. Accordingly, we are in the process of filing an application to withdraw this suit.” On 19/05/2021 learned counsel for the Plaintiff informed the Court as follows, “This suit was overtaken by events since the Kenya Railways Corporation demolished the structure on the suit property.” With due respect, it appears the Plaintiff lost interest in the suit after the actions of the Kenya Railways which made this suit be overtaken by events. Since it was overtaken by events as indicated to Court, to revive it by setting aside the orders of dismissal will not serve any good purpose.

25. While this court is under duty to dispense justice by allowing matters to proceed on their merits, it should not succor litigants who put themselves in tight corners to conduct themselves in a dilatory manner. It cannot also sit on the fence and allow the Plaintiff to prosecute matters with undue delay. That is not the tenor or spirit of the oxygen principle, or the Constitutionof Kenya, 2010. Litigants have the duty to turn the turbines of justice and fast for that reason and sustain the motion until the conclusion of their matters. The present suit is no exception. For that reason, the Application has no tenable basis for it to have been urged.

ORDERS AND DISPOSITION

26. In view of the foregoing, I find that the Application dated 09/11/2021 is unmerited. Resultantly, it fails and is hereby dismissed with costs to the 1st,2nd, 4thand 6th Defendants.

Orders accordingly.

DATED, SIGNED AND DELIVERED AT KITALE VIA ELECTRONIC MAIL ON THIS 24TH DAY OF MARCH, 2022.

DR.IURFRED NYAGAKA

JUDGE, ELC, KITALE