[2022] KEHC 12012 (KLR)

Justus v Gikandi (Miscellaneous Application 27 of 2019) [2022] KEHC 12012 (KLR) (5 May 2022) (Ruling)

Neutral citation: [2022] KEHC 12012 (KLR)

Republic of Kenya

In the High Court at Nyeri

Miscellaneous Application 27 of 2019

FN Muchemi, J

May 5, 2022

Between

Washington Nderitu Justus

Applicant

and

Catherine Wambui Gikandi

Respondent

(Originating from Chief Magistrate, Nyeri in CMCC No 99 of 2004)

Ruling

1. This application for determination is dated April 27, 2021 brought under order 12 rule 7 and order 51 rule 1 of the Civil Procedure Rules and sections 1A, 1B and 3A of the Civil Procedure Act seeks for orders of setting aside the orders made on May 6, 2019 dismissing the application dated April 2, 2019 for non-attendance and to reinstate the application for hearing and determination on merit.

2. The application is unopposed.

The Applicant’s Case 3. It is the applicant’s case that when the application dated April 2, 2019 came up for hearing on May 6, 2019, the matter was not listed. The applicant further states that upon following up on the file at the registry, it happened that the matter had already been called out and dismissed for want of prosecution.

4. The applicant states that the instant suit involves a legitimate cause of action accruing to him and he deserves the opportunity to ventilate his grievances before the court. He further undertakes to take all reasonable steps to expedite the determination of the suit. The applicant further contends that the court is enjoined not to drive away litigants from the seat of justice but rather to encourage parties to solve their disputes within the process set out in law.

5. The applicant states that the respondent shall not suffer any prejudice which cannot be remedied by an award of costs in the event the application is allowed. In the interests of justice, the applicant prays that the application be allowed.

6. The applicant opted not to put in written submissions.

Issue for Determination 7. After careful analysis, the main issue for determination is whether the applicant has satisfied this court that the orders made on May 6, 2019 ought to be set aside and the application dated April 2, 2019 be reinstated.

The Law Whether the orders of 6th May 2019 should be set aside and the application dated 2nd April 2019 be reinstated. 8. Order 12 rule 7 of theCivil Procedure Rulesprovides:-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."

9. Further section 3A of the Civil Procedure Act provides for the inherent powers of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the court process. It provides:-Nothing in this act shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.

10. In that regard, the court has discretion to set aside a judgment or order which may have aggrieved either of the parties. The exercise of this discretion is intended to avoid injustice or hardship resulting from an accident, inadvertence or excusable mistake or error but not to assist a person who deliberately seeks to obstruct or delay the course of justice. In Shah vs Mbogo & Another (1967) EA 116, it was held:-The discretion to set aside an ex parte judgment is intended to be exercised to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake or error but it is not designed to assist a person who has deliberately sought whether by evasion or otherwise to obstruct or delay the cause of justice.

11. Similarly in the persuasive cases of John Kabira Kioni vs George Namasaka Sichangi t/a Sichangi & Co Advocates [2019] eKLR and Franklin J B. Chabari vs Tharaka Nithi County Government & Another[2019] eKLR the factors to consider in setting aside an ex parte judgment or order were outlined as follows:-The motion seeking the setting aside of the order dismissing the suit was made timeously meaning there was no delay. In the case of Mbogo & Another vs Shah [1968] EA 93 and Pithon Waweru Maina vs Thuku Mugiria [1983] KLR 78, the law on setting aside of ex parte judgment or order was considered in great detail. The principles governing the exercise of the judicial discretion to set aside anex parte judgment obtained in default of either party to attend the hearing are:a.Firstly, there are no limits or restrictions on the judge’s discretion except that it should be based on such terms as may be just because the main concern of the court is to do justice to the parties;b.Secondly, 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 the person who has deliberately sought, whether by evasion or otherwise, to obstruct or delay the course of justice;c.A discretionary power should be exercised judicially and not arbitrarily or idiosyncratically.

12. In the present case, the applicant seeks for orders to set aside the orders made on May 6, 2019 dismissing the application dated April 2, 2019 for non-attendance. The reasons advanced by counsel for the applicant for not attending court is that the matter was not in the cause list and he went to the registry to follow up on the same then discovered that the matter had been called out in court and dismissed for want of prosecution. I have perused the court record and note that the application was coming up for hearing on May 6, 2019 for the very first time. It is noted that upon the court dismissing the application, the applicant filed the application on February 21, 2020 under certificate of urgency. Interestingly, that is ten (10) months after the application was dismissed. Notably, the applicant has not explained to the court why it took him 10 months to file the application for reinstatement. Furthermore it is noted that although the applicant states that the matter was not in the cause list, he has not attached the cause list of the court for that particular day to his affidavit. Therefore, it is difficult for this honourable court to confirm the reasons advanced for non-attendance.

13. The application that the applicant seeks to be reinstated is dated April 2, 2019 and also seeks for orders that the applicant be granted 14 days leave to file the memorandum of appeal against the judgment delivered on March 26, 2007 by Chief Magistrate, Nyeri in CMCC No 99 of 2004. A certificate of delay dated April 9, 2008 was attached to the application. It was collected about one year after issue. However, the applicant did not attach a copy of the letter that he sent to apply for certified copy of proceedings or any reminder sent as a follow up with the Deputy Registrar. What impression does this omission create in the eyes of the court? I would not be far from the truth to state that the applicant has not demonstrated diligence in the application that was dismissed.

14. The delay of about twelve (12) years has not been explained by way of supporting documents like the cause list for that day in addition to other evidence. The applicant has an obligation to explain the delay to justify exercise of discretion of this court. In my considered view, no attempt has been made to explain the lengthy delay. The discretion of this court must not be taken for granted and must be exercised judiciously.

15. It is my considered view that this application has no merit and it is hereby dismissed with no order as to costs.

16. It is hereby so ordered.

DELIVERED, DATED AND SIGNED AT NYERI THIS 5TH DAY OF MAY, 2022. F. MUCHEMIJUDGERULING DELIVERED THROUGH VIDEOLINK THIS 5TH DAY OF MAY, 2022.