[2022] KEHC 10207 (KLR)

Kipyegon v National Council for Persons with Disabilties (Judicial Review Miscellaneous Application 146 of 2019) [2022] KEHC 10207 (KLR) (Judicial Review) (14 July 2022) (Ruling)

Neutral citation: [2022] KEHC 10207 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Judicial Review

Judicial Review Miscellaneous Application 146 of 2019

AK Ndung'u, J

July 14, 2022

Between

Daniel Kiprugut Kipyegon

Applicant

and

National Council for Persons with Disabilties

Respondent

Ruling

1. The Applicant is before this Court vide a Notice of Motion application dated December 9, 2021 and filed under Order 51 Rule 1, Order 53 Rule 3, Order 9 rule 9 & 10 of the Civil Procedure Rules, Section 1A,1B, 3 and 3A of the Civil Procedure Act, Cap 21 and Article 159(2)(d) of the Constitution.

2. The Application seeks the following orders;i.Spent.ii.That this Honourable Court be pleased to allow the firm of Bunei Jackline & Associates Advocates to come on record on behalf of the Applicant in place of the firm of Mutea Mwange & Associates Advocates.iii.That this Honourable Court be pleased to set aside the Judgment delivered on November 25, 2021together with all further consequential orders/decrees made thereto.iv.That subsequent to prayer 2 being allowed, the Honourable Court be pleased to grant leave to the Applicant to file a substantive motion within 7 days or any period deemed fit by the court.v.That the costs of this Application be in the cause.

3. The Applicant herein was granted leave on January 29, 2021to file a substantive motion seeking prerogative orders of certiorari and mandamus and through his former advocates on record, a Verifying Affidavit and Statement of Facts were filed and served on the Respondent. Mr. Kiprugut contended that all along he was made to believe by his former advocates that a Substantive Motion had been filed.

4. This court in its Judgment dated November 25, 2021dismissed the suit on grounds that the Applicant had failed to file a Substantive Motion pursuant to Order 53 Rule 3 of the Civil Procedure Rules. It is the Applicant’s case that seeing that he is not an expert on procedures or process of court, he instructed counsel to act on his behalf and it was his legitimate expectation that he would be well represented.

5. The Applicant contends that if this Honourable Court’s judgment is not set aside he will suffer irreparable damage. Further that the court should not to allow procedural technicality to impede the Applicant’s right to substantive justice. The Respondent according to the Applicant has also failed demonstrate any loss that is likely to be suffered if the application is allowed. The Applicant also contends that he has not been indolent as he took action immediately when the judgment was delivered therefore, it is only fair and just that the court grants the orders sought.

6. No response has been filed by the Respondent herein.

Determination 7. Having considered the foregoing, I find that the only issue for determination herein is whether this court ought to set aside its Judgement of November 25, 2021.

8. To begin with, its opportune at this early stage to note that there is no technicality that was visited on the Applicant in the dismissal of the matter in the court’s judgement of November 25, 2021. The bare fact is that the Applicant was granted leave to take out a substantive motion seeking judicial review orders. According to him, his Advocate did not file the substantive motion leading to the dismissal of the matter.

9. The Applicant herein in his defence argued that it was only when the Court dismissed his application that he became aware that a substantive motion had not been filed by his then advocates. He argued that the advocates purportedly forwarded to him a Verifying affidavit and Statement of Facts in the guise that the two are what constituted the Substantive Motion.

10. The Applicant also contended that as he was not an expert in legal matters he engaged the firm of Mutea Mwange & Associates Advocates to represent him and that it was his legitimate expectation that the same would be done efficiently and professionally.

11. What the application seeks is to trigger the court’s exercise of power to set aside its orders for adverse orders arising from mistake of counsel. The words of Ringera J in Omwoyo –vs- African Highlands & ProduceCo. Ltd [2002]1 KLR, readily come to mind when dealing with an eventuality like the one before court. The Learned judge stated:“Time has come for legal practitioners to shoulder the consequences of their negligent act or omissions like other professionals do in their fields of endeavour. The Plaintiff should not be made to shoulder the consequences of the negligence of the Defendant’s advocates. This is a proper case where the Defendants remedy is against its erstwhile advocates for professional negligence and not setting aside the judgment”.

12. The finding above rings true even today. Advocates cannot possibly be easily excused from their negligence or unprofessionalism in the handling of clients briefs for which they are handsomely rewarded in fees. Allowing such a trend would not only injure their respective clients but would be a big blot to the administration of justice and the enforcement of the rule of law noting that advocates are officers of court who should in the forefront in assisting the courts to administer justice and to promote the rule of law.

13. That said, the court reserves residue powers to ensure that the ends of justice are met and based on circumstances of each case, and applying its inherent powers, may set aside an order that was arrived at due to a fatal omission by counsel.

14. In Belinda Muras & 6 others –vs- Amos Wainaina [1978] KLR Madan JA (as he then was) defined what constitutes a mistake as follows:“A mistake is a mistake. It is no less a mistake because it is an unfortunate step. It is no less pardonable because it is committed by senior counsel. Though in the case of junior counsel court might feel compassionate more readily. A blunder on a point of law can be a mistake. The door of justice is not closed because of a mistake has been made by a lawyer of experience who ought to know better. The court may not condone it but ought certainly to do whatever is necessary to rectify if the interest of justice so dictate.” (emphasis mine).

15. Similarly, in Phillip Chemwolo &another –vs- Augustine Kubede [1982-88] KLR 103 at 1040 Apaloo JA stated thus: -“Blunders will continue to be made from time to time and it does not follow that because a mistake has been made that a party should suffer the penalty of not having his case heard on merit’’

16. Addressing the court’s discretionary power to set aside its orders, the Court of Appeal for Eastern Africa in its decision in Shah –vs- Mbogo & Another[1967]6. A U7, held that: -“Applying the principle that the court’s 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 not to assist a person who has deliberately sought whether by evasion or otherwise to obstruct or delay the cause of justice, the motion should be refused”.

17. I have applied my mind to the applicant’s predicament in this case. I note that his case was not heard on merit for the reason that the advocate failed to file the necessary substantive notice of motion leading to the dismissal of the matter. I have taken note of the rights that the applicant intends to protect. I have factored in the fact that the application that needed to be filed was a technical one under Order 53 of the Civil Procedure Act and the provisions in the Law Reform Act. The applicant being a layman would be totally in the woods when it comes to initiation and prosecution of such an application. He has now sought alternative legal representation. Am persuaded that he should be allowed a second bite on the cherry to have his case heard on merit in the interests of justice. Am inclined to allow the application to give the Applicant his day in court.

18. In the premises, I allow the Application and make the following orders;i.That the firm of Bunei Jackline & Associates Advocates is allowed to come on record on behalf of the Applicant in place of the firm of Mutea Mwange & Associates Advocates.ii.That this Court’s Judgment of November 25, 2021 is hereby set aside together with all further consequential orders/decrees made thereto.iii.That the Applicant is hereby allowed to file a substantive motion within 7 days of this Ruling and serve.iv.That the matter be mentioned on July 21, 2022 for directions.v.That the costs of this Application be in the cause.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 14THDAY OF JULY, 2022A.K. NDUNG'UJUDGE