[2023] KEHC 25149 (KLR)

Kinyua v Mutegi (Civil Appeal E013 of 2022) [2023] KEHC 25149 (KLR) (8 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25149 (KLR)

Republic of Kenya

In the High Court at Chuka

Civil Appeal E013 of 2022

LW Gitari, J

November 8, 2023

Between

Esther Muthoni Kinyua

Appellant

and

Fredrick Kinyua Mutegi

Respondent

Ruling

1. This is the Ruling in the applicant’s Notice of Motion dated July 5, 2023. In the motion, the applicant seeks the following orders:-1. Spent2. That there be stay of execution of the orders issued on July 4, 2023 dismissing the appeal for want of prosecution pending the hearing and determination of this application.3. That the orders issued on July 4, 2023 dismissing this appeal for want of prosecution be set aside with all the consequential orders arising therefrom and the appeal be fixed for hearing and determination in merits.

2. The appeal is based on the following grounds:-a.The applicant was not aware that the appeal was admitted nor was she aware of the directions issued by this Honourable court on March 13, 2023 and June 5, 2023. b.The Deputy Registrar did not communicate to the applicant the orders issued by this court or the mention date.c.The applicant became aware of today’s mention on July 4, 2023 at around 4. 00 p.m when the court assistant informed the applicant’s advocates of the mention date.d.On July 5, 2023, the applicant’s advocates failed to reach court on line due to network failure and when he reached, he was not audible.e.The applicant was condemned unheard due to mistakes not of her making.f.Had the applicant been aware of the directions of the court issued on March 13, 2023, she could have prepared the Record of Appeal and submissions.

3. The Application is supported by the Affidavit of Momanyi Gichuki Advocate for the applicant sworn on July 5, 2023. He depones that he was instructed by the appellant to act for her in this appeal and he consequently filed a notice of change of advocates dated March 1, 2023. That by the time he came on record for the appellant the appeal had not been admitted and hence he could not prepare and file the record of appeal. He further deposes that he was neither aware that the appeal had been admitted nor that directions were issued by the court on March 13, 2023 and June 5, 2023.

4. According to Mr. Momanyi, the Deputy Registrar did not communicate to the Applicant the orders issued by this court or the mention date. He claims that on July 4, 2023 at around 4. 00 p.m. is when he came to know that the matter was fixed for mention on July 5, 2013 when the court assistant informed him of the said mention date. Further, that on July 5, 2023, he failed to reach the court through telephone due to network failure and that when he finally was connected, he was not audible perhaps because of network issues.

5. The learned counsel thus maintains that had she been made aware of the directions of the court issued on March 13, 2023, he could have prepared the record of application and submissions on behalf of the applicant. The learned counsel thus prays for the appeal to be allowed stating that the applicant was condemned unheard due to mistakes not of her making.

6. The Applicant filed his submissions on September 18, 2023. However, when the matter came up for mention on October 4, 2023, Mr. Muthomi, learned counsel for the Respondent indicated that he had not been served with the Applicant’s submissions. Subsequently, this Court ordered that it shall disregard the applicant’s submissions for non-compliance with the order to serve and proceeded to fix a ruling date for the application.

7. When the application came up for hearing on July 13, 2023 the court directed that the application be canvassed by way of written submissions and the matter be mentioned on October 4, 2023 to confirm compliance.On October 4, 2023 the Counsel for the respondent stated that he was not served. The court then directed that it would proceed to give a ruling and disregard the submissions for none compliance with the order to serve.

8. Before I proceed to determine the application it is important to give a brief background of the appeal. This appeal was filed vide a Memorandum of Appeal dated June 24, 2022. The Memorandum of Appeal was filed by the firm of Lucy Kaari Matumbi & Co. Advocates for the Appellant.

9. The appeal was subsequently admitted on October 13, 2022 and on March 13, 2023 the court gave directions that the appeal shall be disposed off by way of written submissions. The court further directed that the Deputy Registrar to serve the directions on the parties and the matter to be mentioned on June 5, 2023. The record shows that the Deputy Registrar served the Firm of Lucy Kaari for the appellant and Muthomi Gitari for the Respondent.On June 5, 2023, none of the parties appeared in court and the matter was re-scheduled for mention on July 5, 2023. On that date, the counsel for the appellant never appeared and the Counsel for the respondent promptly applied for the dismissal of the appeal.

10. I have perused the record. The record shows that the Firm of Momanyi Gichuki and Company Advocates for the respondent filed a notice to change of Advocates on March 1, 2023. Despite the fact that this notice of change of advocate having been filed on March 6, 2023 and the requisite court fees paid on the same date, the Deputy Registrar went ahead and served the firm of Lucy Kaaria and Muthomin Gitari and Company Advocates. There is no evidence to show that Momanyi Gichuki & Company Advocates who were then on record was served with the mention notice of June 5, 2023.

11. There was an error apparent on the face of the record as Counsel for the appellant was not served despite having filed a notice of appointment.

12. Turning to the Notice of Motion, I have considered the application. The only issue for determination is whether the appeal should be reinstated.

Analysis and Determination: 13. Proceedings for setting aside an order of dismissal of a suit for want of prosecution are governed by order 12 rule 7 of the Civil Procedure Rules.The rule provides:“Where under this order Judgment has been entered or the suit has been dismissed the court on an application may set aside or vary the Judgment or order upon such terms as may be just.”The circumstances that led to the dismissal of this appeal are that the counsel for the appellant was not served with the notice that the appeal had been admitted and directions were given. As pointed out above the Counsel for the appellant was not served with the mention notice on July 5, 2023 when the appeal was dismissed. It follows that had it been brought to the attention of the court that the appellant was not aware of the mention notice, it would not have taken the drastic action of dismissing the appeal.Section 3A of the Civil Procedure Act gives court wide discretion over matters and issues that are before it. The Section gives the court what is termed as inherent powers to make such orders as may be necessary to meet the ends of justice or to prevent the abuse of the process of the court. Section 3A of the Civil Procedure Act 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.”The courts should also ensure that parties are not condemned unheard. That is why the court is given discretion to reinstate suits which have been dismissed. In the case of Shah v Mbogo &another (1967) EA 116 while considering the exercise of discretion by courts, Harris- J- stated;“The discretion is intended so as to be exercised to avoid injustice or hardship resulting from an 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 justice.”In this case there was an inadvertence as notices were served on the advocate who was no longer on record for the applicant.

14. The applicant brought this application without delay. The court has a duty to do justice between parties. Section 1A & 1B of the Civil Procedure Act provides for the overriding objectives of the Act, section 1A (2) provides that, “the court shall in the exercise of its powers under this Act or the interpretation of its provisions seek to give effect to the overriding objectives.”On the other hand, section 1B of the Act gives the ultimate aims of the said objectives and states inter alia that, ‘it is to achieve just determination of proceedings efficient disposal of the business of the court, efficient use of available judicial and administrative resources, timely disposal of the proceedings and all other proceedings at cost affordable by the parties.’This is to be achieved by determining matters before the courts by determining the disputes on merits and not on procedural technicalities. Article 159(2) of the Constitution enjoins courts to exercise its judicial authority and mandate to do substantive justice. It provides;“In exercising judicial Authority the courts and Tribunals shall be guided by the following principles-a.Justice shall be administered without undue regard to procedural technicalities.”In this case it is clear from the record that the appellant was not aware that the appeal had been admitted and directions given. This was in no way in the applicant’s fault. The applicant was not served as ordered by the court.For these reasons, I hold that I should exercise discretion and reinstate the appeal.

In Conclusion:For the reasons stated, I order that- 1. The order dismissing the appeal is set aside.

2. The appellant shall comply with the directions given by this court on 13/3/2023, that is to say that the record of appeal together with written submissions shall be filed and served within 45 days from the date of this ruling. Upon being served the respondent shall file his written submissions within 21 days of service.The appellant shall have fourteen (14) days to respond to the respondent’s submissions.

3. The matter shall then be mentioned to confirm compliance.

4. On costs, I note that the respondent was served with the application and did not oppose the application. In the circumstances, I make no orders as to costs.

DATED, SIGNED AND DELIVERED AT CHUKA THIS 8TH DAY OF NOVEMBER 2023. L.W. GITARIJUDGE