[2022] KEHC 16085 (KLR)

Kamau (Suing on behalf of the Estate of Anthony Mwangi Kuria) v Kamau & 2 others (Civil Appeal E071 of 2021) [2022] KEHC 16085 (KLR) (1 December 2022) (Judgment)

Neutral citation: [2022] KEHC 16085 (KLR)

Republic of Kenya

In the High Court at Kiambu

Civil Appeal E071 of 2021

RB Ngetich, J

December 1, 2022

Between

Elijah Kuria Kamau (Suing on behalf of the Estate of Anthony Mwangi Kuria )

Appellant

and

Charles Murigi Kamau

1st Respondent

Rana Auto Mobiles Limited

2nd Respondent

Solomon Karori Gathoka

3rd Respondent

(Being an appeal from the ruling of Honourable Senior Resident Magistrate, Hon. Riany on 25th March 2021 in Thika SRMCC No . 1039 of 2013)

Judgment

1. This appeal arises from a ruling delivered on March 25, 2021 by the trial court declining to set aside or vary the orders dismissing the suit on April 27, 2018 for want of prosecution.

2. The appellant being aggrieved by the trial court’s decision filed a Memorandum of Appeal citing nine (9) grounds as follows:(a)That the Learned Magistrate erred in law and in fact in holding that the Plaintiff and his advocate's conduct during the pendency of the matter vitiated his rights as are enshrined under the principle of overriding objective in Sections 1A and b of the Civil Procedure Act, a position contrary to principles of natural justice and fair hearing.(b)The learned Magistrate erred in law and fact by finding that the appellant was negligent contrary to the evidence before her.(c)The learned Magistrate erred in law and fact by finding that there was inordinate delay by the appellant in waiting for two (2) years before applying for reinstatement, in effect failing to realize that the prevailing Covid-19 pandemic greatly affected the court’s operations, especially the period after March 2020, when in fact little or no activities were taking place the application for reinstatement stayed on the portal for six (6) months before it was given a mention date.(d)The learned Magistrate erred in law and fact in holding that the appellant was negligent in the course of prosecuting this matter, which couldn’t be further from the truth as he showed his interest to have this matter prosecuted when he changed the advocates on record.(e)The learned Magistrate erred in law and in fact in finding that the application could not be granted as it asked for the matter to be set down for formal proof instead of hearing, in inference failing to give the appellant a chance of rectifying the mistakes hence have justice not only be served but also appear to be served.(f)The learned Magistrate erred in law and in fact by dismissing the application on the basis of negligence, whose effect was to deny the estate of the deceased the right of compensation.(g)The learned Magistrate erred in law and in fact by dismissing the application working Suo moto, disregarding the fact that no prejudice of whatsoever kind would be occasioned on the Defendant, had the matter been set down for hearing and that the Defendants had themselves elected not to oppose the said application as was evidenced in court.(h)The learned Magistrate erred in law and in fact by arriving at a decision completely unsupported by the evidence.(i)The learned Magistrate erred in law and in fact by arriving at a decision which permanently removes the appellant from the seat of justice.

3. The appellant urged the court to dismiss with costs the trial court’s ruling or in the alternative vary or substitute the trial court’s ruling with its own decision.

4. Directions were taken to canvass the appeal through written submissions to which both parties complied.

Appellant’s Submissions 5. Mr Simuyu counsel for the appellant filed submissions on December 21, 2021. He submitted that the appeal emanates from the trial court’s ruling of March 25, 2021. The suit was dismissed on April 27, 2018 for want of prosecution. The application seeking reinstatement of the suit was uploaded on June 18, 2020. Counsel submitted that he was not aware of the dismissal of the suit and the delay in filing an application for reinstatement of the matter was occasioned by the Covid -19 scaling down measures taken by the court.

6. Counsel submitted that the trial Magistrate misapplied herself in concluding the issues at hand were similar to issues in the case ofOdoyo Osodo vs Rael Obara Ojuok & 4 others (2017) eKLR where the defendant sought to reopen the defence case after the case was closed and parties filed their submissions. But the court declined to allow the opening of the case.

7. Counsel submitted that in the present case, the hearing had not kicked off and there was therefore no interruption of whatever nature. He submitted that re-admitting the case would be unpausing the matter and allowing its continuation to come to fruition; that the trial court failed to consider the interest of justice as far as the estate of the deceased is concerned and removed the plaintiff from the seat of justice.

8. Counsel further submitted that the trial court gave more regard to the prejudice to be suffered by the respondents yet the Respondents did not demonstrate the same; there was no injustice to be occasioned to the Respondent as the application for reinstatement sought to return the suit to the rightful course of justice.

9. Counsel submitted that the mistake that led to the suit being dismissed was remedied by the application seeking to reinstate the suit and the delay in filing the application for reinstatement of the suit was hampered by the missing file as well as the period when the Covid -19 pandemic was at its peak and the court was not in operation.

10. That the application for reinstatement of the suit was uploaded to the Thika Court filing email address on June 18, 2020 and despite numerous follow-ups, it was assessed on November 18, 2020 and slated for hearing on March 2021; and submitted that the delay was beyond the control of the applicants.

11. Counsel further submitted that the 1st and 2nd Defendants have never filed their defence and if the same has been filed, it has never been served upon the applicants and further submitted that Section 19 of the Civil Procedure Act Vis a Vis Order 3 Rule 1 of the Civil Procedure Rules which provides that:-“whenever a court has been moved in a less desirable manner in itself is not enough to dismiss the suit. The court should satisfy itself that a different approach would be the most tenable and urged the court to vary the trial court’s decision and reinstate the suit for hearing”.

Respondent’s Submissions 12. Counsel for the Respondent filed submissions on January 24, 2022 and submitted that the suit in the lower court was filed on December 31, 2013 and an extension of summons was done through a notice of motion application dated March 14, 2016; the Appellant failed to prosecute the suit. A notice to show cause was slated for hearing on April 27, 2018, when the court dismissed the suit for want of prosecution.

13. Counsel further submitted that the application for reinstatement of the suit was filed two (2) years after the dismissal of the suit and urged the court not to reinstate the suit as the Respondent proved non-prosecution of the suit for one (1) year between March 14, 2016 to April 27, 2018.

14. Counsel submitted that the dismissal was done in accordance to Order 17 Rule 2 of the Civil Procedure Code and the delay in filing the application for reinstatement is inordinate and inexcusable.

15. Counsel further submitted that the Respondents have suffered prejudice by the delay by the appellants and will further be prejudiced if the suit in the trial court is reinstated; that there has been an inordinate delay of six (6) years in prosecuting the matter and the appellant is not desirous of prosecuting the matter.

16. Counsel further submitted that a lot of evidence has been lost since 2013 to date and some witnesses may not be alive to testify and if alive to testify, may not vividly recall the case which is detrimental to the Respondent.

17. Counsel submitted that it is in the interest of justice that the court upholds the trial Court's ruling dismissing the suit and urged this court to dismiss the appeal with costs to the Respondents.

Analysis And Determination 18. I wish to consider whether the trial Magistrate erred in declining to reinstate the appellants’s suit.

19. Record shows that the appellant sued the Respondent on behalf of the estate of Anthony Mwangi Kuria claiming general and special damages for the injuries sustained on January 1, 2011 along the Kambiti area along Thika- Sagana road. The appellant alleged that the injuries were occasioned by the 1st Respondent.

20. The appellant filed the plaint on December 1, 2013 and on December 22, 2014 the appellant sought an extension of the summons to enter an appearance and the 3rd Respondent filed a statement of defence on March 14, 2016.

21. After the trial court delivered its ruling on the application by the 3rd Respondent to have the suit dismissed for service of summons outside the stipulated timelines, the appellant did not prosecute the suit.

22. The trial court issued a notice to show cause why the suit should not be dismissed on April 27, 2018. Despite service on the parties, no steps were taken by the parties neither were the parties present to explain to court why the suit should not be dismissed for want of prosecution. The trial court proceeded to dismiss the matter for want of prosecution on April 27, 2018.

23. The appellant filed an application dated June 16, 2020, seeking to reinstate the suit which was dismissed on March 25, 2021.

24. The application for reinstatement of the suit was based on the grounds that the previous advocate in conduct of the matter failed to attend court as he was engaged in another matter. The notice to show cause was not served upon the appellant’s advocate. That the appellant wishes to prosecute the matter.

25. The trial court pointed out that the appellant took two (2) years to realize the suit was dismissed and filed an application for dismissal. Further, the court pointed out the appellant contradicted himself as he at one point pointed out that his advocate was not served and also stated that the advocate had sent a representative to hold his brief on the material day of the dismissal.

26. The trial court in dismissing the matter opined that parties are bound by their own pleadings and the prayers sought by the appellant were unattainable as the matter was not for formal proof;the appellant sought to vary and or set aside its orders dismissing the suit for non-attendance by the plaintiff and down the matter for formal proof and determination thereafter.

27. It is trite law that a litigant who files a case is under a duty to ensure the matter progresses all time. The case was filed on December 1, 2103. At the time of dismissal, the suit was five (5) years old.

28. The appellant argues that the application for reinstatement of the suit was uploaded on the judiciary website on June 18, 2020; however, the same was assessed on November 18, 2020. He attributes the delay to the Covid – 19 Pandemic that affected the court's operation. He contends the delay was beyond his control.

29. The appellant’s argument is that there is no indolence in prosecuting the matter. The 1st and the 2nd Respondent have not filed their defence and if the same was filed has never been served upon the Appellant.

30. Order 17 Rule 2 of the Civil Procedure Rules 2010 gives the court the discretion to dismiss a suit where no step has been taken in the matter for a period of one year. The rule provides as follows:

“In any suit in which no application has been made or step taken by either party for one year, the court may give notice in writing to the parties to show cause why the suit should not be dismissed and if the cause is not shown to its satisfaction may dismiss the suit….” 31. The court is also vested with the powers to reinstate the suit under Order 12 Rule 7 of the Civil Procedure Rules 2010:-“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”.

32. The trial Magistrate in her ruling acknowledged that the orders sought were not capable of being awarded and dismissed the application for reinstatement. A period of one year had lapsed prior to the filing of dismissal of the suit. The application for reinstatement was also brought two (2) years from the date when the suit was dismissed.

33. According to the record, it is evident the parties were not aware of the dismissal of the suit as the Respondents filed an application for dismissal of the suit on 23rd January 2019. The Respondent contends the delay is inordinate and inexcusable and reinstating the suit will prejudice the respondents.

34. In the case of Ivita v Kyumbu [1984] KLR 441, Chesoni, J. (as he then was) that:“The test is whether the delay is prolonged and inexcusable, and, if it is, can justice be done despite such delay. Justice is justice to both the Plaintiff and Defendant; so both parties to the suit must be considered and the position of the Judge too, because it is no easy task for the documents, and, or witnesses may be missing and evidence is weak due to the disappearance of human memory resulting from lapse of time. The Defendant must however satisfy the court that he will be prejudiced by the delay or even that the plaintiff will be prejudiced. He must show that justice will not be done in the case due to the prolonged delay on the part of the plaintiff before the court will exercise its discretion in his favour and dismiss the action for want of prosecution. Thus, even if delay is prolonged if the court is satisfied with the plaintiff’s excuse for the delay the action will not be dismissed, but it will be ordered that it be set down for hearing at the earliest available time.”

35. Although there has been a delay in prosecuting the matter by the appellant it is prudent for the court to evaluate whether justice will be served upon the parties if the suit is reinstated.

36. From the record, Covid-19 Pandemic contributed to delay in filing application for reinstatement of suit.

37. I do agree with the applicant that court operations were scaled down. Dismissal of suit locked out the appellant from accessing justice.

38. In my view, the factors that contributed to delay have been explained. I find the delay execusable and allow the appeal.

Final Orders:- 39. 1.Appeal is allowed.2. The file is remitted back to the Magistrate court for a hearing.3. Hearing on a priority basis.

JUDGMENT DELIVERED, DATED AND SIGNED VIRTUALLY AT KIAMBUTHIS 1ST DAY OF DECEMBER, 2022. ………………………………RACHEL NGETICHJUDGEIn the Presence of:Martin/Kinyua – Court AssistantNo appearance by Parties.