[2022] KEHC 13330 (KLR)

Kameji Mixed Secondary v Vajra Drills Limited (Civil Appeal 84 of 2021) [2022] KEHC 13330 (KLR) (3 October 2022) (Ruling)

Neutral citation: [2022] KEHC 13330 (KLR)

Republic of Kenya

In the High Court at Migori

Civil Appeal 84 of 2021

RPV Wendoh, J

October 3, 2022

Between

Kameji Mixed Secondary

Applicant

and

Vajra Drills Limited

Respondent

Ruling

1The applicant Kameji Mixed Secondary filed a notice of motion (the application) dated March 23, 2022 seeking the following orders:-a.That pending the hearing and determination of this application, this court do grant an order staying the execution of the decree in Rongo Civil Case No 17 of 2020. b.That the order of this court made on May 15, 2022 dismissing the suit for non - attendance of the plaintiff’s advocate be reviewed, varied and/or set aside.c.Costs be provided for.

2The application is premised on the grounds on its face and the supporting affidavit of Obach Humprey, counsel for the applicant. Counsel deponed that the matter was dismissed for non - attendance on March 15, 2022 for the reasons that he was not in court when it was called out for mention; that he had sent one Ms Apondi to hold brief but she did not do as instructed; that counsel learnt of the dismissal upon sending his clerk to ascertain the status of the file; that it would be unfair if the applicant’s application is dismissed due to the mistakes of the advocates; that the applicant stands to suffer irreparable harm if the suit is not heard on merits since they stand to be greatly prejudiced.

3The application was not opposed. On June 20, 2022 when this matter came up for directions, the court directed that counsel for the respondent, Mr Mutitu do ensure that his submissions are placed on the file but he did not comply.

4The applicant filed its undated submissions on June 9, 2022 which I have considered. The issue for determination is whether the application has merit.

5Order 12 rule 7 of the Civil Procedure Rules 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.”

6The principles on whether or not to set aside an order for dismissal of a suit were elaborated in the case of Shah v Mbogo (1967) EA 166. The Court of Appeal held that it is a matter of discretion and the courts should exercise this discretion in a manner intended to avoid injustice or hardship resulting from an accident, inadvertence or mistake but it is not designed to assist a person to deliberately seek evasion, obstruction or delay the cause of justice. In essence, there has to be sufficient cause by the litigant why they failed to appear in court.

7In the case of Wachira Karani v Bildad Wachira (2016) eKLR the court referred to the Supreme Court of India case Parimal v Veena which discussed what constitutes sufficient cause and held as follows:-“The court in the above case added that while deciding whether there is a sufficient cause or not, the court must bear in mind the object of doing substantial justice to all the parties concerned and that the technicalities of the law should not prevent the court from doing substantial justice and doing away with the illegality perpetuated on the basis of the judgment impugned before it. The test to be applied is whether the defendant honestly and sincerely intended to remain present when the suit was called for hearing. Sufficient cause is thus the cause for which the defendant could not be blamed for his absence. Sufficient cause is a question of fact and the court has to exercise its discretion in the varied and special circumstances in the case at hand. There cannot be a straight-jacket formula of universal application. Thus, the defendant must demonstrate that he was prevented from attending court by a sufficient cause.”

8In the instant application, counsel deponed that he sent one Ms Apondi to hold his brief but she did not attend to the matter as instructed. The said Ms Apondi has not filed an affidavit in court to explain whether indeed she was instructed to attend or why she did not attend to the matter. The application was dismissed on March 15, 2022 and the instant application to reinstate it was filed on March 23, 2022. There was no inordinate delay on the part of the applicant in bringing this application. It demonstrates their keenness to prosecute the application and appeal.

9The appeal herein was against the judgement and decree in Rongo Civil Case No 17 of 2020. The court ordered that the applicant pays the respondent a sum of Kshs 1,468,050/= together with interest and costs of the suit. The application dated October 13, 2021 which the applicant seeks to reinstate was for stay of execution. The applicant is asking for the same order herein. Section 1A and 1B of the Civil Procedure Act urges the courts to determine civil suits in a manner as to facilitate the just, expeditious, proportionate and affordable resolution of civil suits. I find that the order for stay pending the appeal can be granted with conditions in accordance to order 42 rule 6 of the Civil Procedure Rules in order to do justice to the applicant so that they can have their day in the High Court.

10In exercise of this court’s discretion, I find that the application has merit and I issue the following orders:-1. The order of May 15, 2022 dismissing the suit is hereby set aside.2. A stay of execution of the judgement and decree in Rongo Civil Case No 17 of 2020 is hereby issued on condition that the applicant to deposit a sum of Kshs 500,000 within 14 days in a joint interest earning an account of both counsel.3. In default of no (2) above, the stay orders stand vacated.4. The applicant to file and serve the record of appeal within 45 days of this ruling.5. The applicant to pay the costs of this application.6. Mention on November 22, 2022 to confirm compliance and further orders on hearing of the appeal before the Deputy Registrar.

DATED, DELIVERED AND SIGNED AT MIGORI THIS 3RDDAY OF OCTOBER, 2022R. WENDOHJUDGERuling delivered in the presence of: -Ms. Ochieng holding brief Mr. Obach for the ApplicantNo appearance for the RespondentNyauke Court Assistant