[2022] KEHC 15100 (KLR)

Kinoti v Njeru (Suing through her next friend Mary Njoki Mwangi) (Civil Appeal E012 of 2020) [2022] KEHC 15100 (KLR) (3 November 2022) (Ruling)

Neutral citation: [2022] KEHC 15100 (KLR)

Republic of Kenya

In the High Court at Chuka

Civil Appeal E012 of 2020

LW Gitari, J

November 3, 2022

Between

Antony Mwirigi Kinoti

Appellant

and

Faith Wawira Njeru

Respondent

Suing through her next friend Mary Njoki Mwangi

Ruling

1. The Appellant herein lodged an appeal to this Court vide a Memorandum of Appeal dated 16th November 2020. The appeal was against the ruling of Senior Resident Magistrate delivered on 15th October 2020 in Chuka CMCC No. 144 of 2016 (the “impugned ruling”). The appeal sought the variation and/or setting aside of the impugned ruling and the granting of reasonable throw away costs to the Respondent.

2. On 27th July 2021, the Appellant’s appeal was dismissed for want of prosecution.

3. Vide a Notice of Motion dated 19th October 2021, the Appellants sought for the following orders:a.Spent.b.Spent.c.That the Honourable court be pleased to set aside the Ruling/Order delivered on 27th July 2021 dismissing the Appellant’s Appeal dated 16th November 2020. d.That this Honourable court be pleased to re-instate the Appeal dated 16th November 2020 and filed on the same day and the same be determined on merit.e.That this Honourable Court be pleased to make any further Order(s) and issue any relief it may deem just to grant in the interest of justice.f.That the costs of this Application be in cause.

4. The application is supported by the affidavit sworn on even date by Evelyne Nyaga, the Appellant’s advocate. She deposed that the impugned ruling gave punitive conditions that the Applicant deposit the decretal amount of Kshs. 5,436,831/= before being given a chance to have their day in court. She alleged that the Appellant/Applicant was not aware of the mention date that was scheduled on 27th July 2021 when the appeal was dismissed for want of prosecution. She further alleged that the Respondent has threatened execution of the impugned ruling and that the Applicant would suffer irreparable loss if the Respondent makes good her threat.

5. The Respondent opposed the application through the Ground of Opposition dated 6th November 2021 and a Replying affidavit sworn on 18th November 2021 by Peter Mwangi Muchira, the Respondent’s advocate. He deposed that no sufficient cause has been shown for review of this Court’s order of 27th July 2021. Further, counsel for the Respondent deposed that the application for review is belated having been made more than 79 days after the order sought to be reviewed was made. He thus urged this court to dismiss the present application with costs arguing that the Applicant is entitled to enjoy the fruits of her judgment that was passed on 11th October 2018 in Chuka CMCC No. 144 of 2016.

6. The application was canvassed by way of written submissions. Through their counsel on record, the Appellant/Applicant and the Respondent filed their written submissions on 28th January 2022 and 18th March 2022 respectively. Hereunder is a summary of their respective submissions.

The Appellant’s/Applicant’s submissions 7. It was the Applicant’s submission that the Applicant was always willing to prosecute his appeal. He contends that if he had received the mention notice for 27th July 2021, he would have attended court on the said date. He contends that he has come before this court with clean hands as the present application was allegedly filed as soon as counsel for the Applicant found out about the dismissal of the appeal. It was further the Applicant’s submission that the Respondent has not demonstrated that he would suffer any prejudice which could not be adequately compensated by payment of costs. The Applicant thus prayed that the application be allowed by setting aside of the order issued on 27th July 2021.

The Respondent’s submissions 8. On her part, the Respondent submitted that the present application was incompetent and improperly before this Court. According to the Respondent, the orders sought under prayers no. (b), (c) and (d) of the application cannot co-exist in the same application.

Issues for determination 9. From the grounds raised in support and opposition of the application as well as the respective submission of the parties, the following issues arise for determination by this court;a.Whether there was inordinate delay in filing the present application.b.Whether sufficient cause has been shown for review of this court’s orders of 27th July 2021, and if so, how the orders should be reviewed.

10. In my view, the prayer for an order of stay of execution in Chuka CMCC No. 144 of 2016 is spent as the same was seeking a temporary relief pending the hearing and determination of this application. This court did consider the said prayer and refused to grant the same on account that the Applicant had failed to demonstrate that the Respondent was in the process of execution. However upon the respondent’s indication that they were not executing the court orders stay of execution pending determination of this application.

11. Below therefore is an analysis of the two (2) issues highlighted above.

Analysis a.Whether there was inordinate delay in filing the application 12. This Court has been called upon to exercise its jurisdiction to reinstate the Applicant’s appeal that was filed on 16th November 2020. The present application is expressed to be brought under the provisions of, inter alia, Order 45 Rule 1 of the Civil Procedure Rules which state:“1) Any person considering himself aggrieved—(a)by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or(b)by a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay.”

13. In considering whether a party is guilty of inordinate delay, the Court of Appeal decision inCecilia Wanja Waweru v. Jackson Wainaina Muiruri & another (2014) eKLR held as follows:-“There is no set rule as to what constitutes inordinate delay. Whether or not a party is guilty of inordinate delay depends on the circumstances of the case. We are of the considered view that the learned judge in considering the application, should have looked at the appellant’s conduct from the time the appeal was field up to the date the application for reinstatement was filed……..We have to ask ourselves whether the failure by the appellant to prosecute the appeal in the High Court and/or the delay in filling the application for reinstatement constitute an excusable mistake or was it meant to deliberately delay the cause of justice……. Why didn’t she set the appeal down for hearing for almost 14 years”. The reasonable explanation would be that the appellant had been indolent and had slept on her rights. She was only awakened from her slumber by the dismissal of the appeal.”

14. The present application for reinstatement of the Applicant’s appeal was filed after a period of slightly more than 2 ½ months after the dismissal of the appeal. In my view, the delay in filing the present application was not inordinate. The court exercises discretion to set aside its orders. Order 42 Rule 21 of the Civil Procedure Rules provides:“Where an appeal is dismissed under rule 20, the appellant may apply to the court to which such appeal is preferred for the re- admission of the appeal; and, where it is proved that he was prevented by any sufficient cause from appearing when the appeal was called on for hearing, the court shall re-admit the appeal on such terms as to costs or otherwise as it thinks fit.”

15. The rule requires a party to prove that it had sufficient cause for not appearing in court when the appeal was called. If sufficient cause is shown, court shall re-admit the appeal.

16. The contention by the applicant is that it was not served with the notice. I have looked at the mention notice dated 13/7/2022. There is nothing on the said notice to prove that the applicant was served. Service of a mention notice is important as it gives the party knowledge that the matter will be mentioned on the said date so that he can appear and be heard. Failure to serve a party becomes an issue of natural justice as the party may be condemned unheard. It is also an issue of fair trial under Article 50(1) of the Constitution which provides:1. Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body.”

17. The court has discretion to set aside exparte orders to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake. See case cited by the applicant Ester Wamaitha Njihia and 2 Others-v- Safaricom Limited. The current Constitutional dispensation advances a practice of determining disputes without undue regard to procedural technicalities, see Article 159(2) (d) which states:“In exercising judicial authority, the courts and tribunals shall be guided by the following principles—(d) Justice shall be administered without undue regard to procedural technicalities.”

18. This is buttressed by Section 1A and 1B of the Civil Procedure Act (Cap 21 Laws of Kenya) which enjoins court to ensure that there is proportionate and affordable determination of disputes filed in court.

19. In addition, Section 3 A of the Civil Procedure Act provides that nothing in the 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 process of the court.

20. The court has a duty to do justice between parties. That duty cannot be achieved if the court overly relies on procedural technicalities other than giving the parties an opportunity to ventilate their cases by presenting their cases before the court. That way the court gives the parties the right to be heard and determine the cases on merits.

21. In this case the applicant has given sufficient reason for none attendance in court when the appeal was dismissed. The application has been filed without unreasonable delay.

22. In the circumstances, as mandatorily provided under Order 42 Rule 21 I find that sufficient cause has been shown and the appeal should be reinstated.

23. I find that the application has merits. I order that:-1. The order issued on 27/7/2021 dismissing the appeal is set aside.2. The appeal is reinstated for hearing and determination on merits.3. The appellant to file and serve the record of appeal within 30 days.4. The appeal shall then be mentioned for directions.

DATED, SIGNED AND DELIVERED AT CHUKA THIS 3RD DAY OF NOVEMBER 2022. L.W. GITARIJUDGE