[2022] KEHC 12635 (KLR)

M’Arimi & others v M’Arimi (Civil Appeal E001 of 2021) [2022] KEHC 12635 (KLR) (7 July 2022) (Ruling)

Neutral citation: [2022] KEHC 12635 (KLR)

Republic of Kenya

In the High Court at Chuka

Civil Appeal E001 of 2021

LW Gitari, J

July 7, 2022

Between

Eugenio Mutua M’Arimi & others

Appellant

and

John Mbaabu M’Arimi

Respondent

Ruling

1. Before this court is the application dated October 28, 2021. It seeks for the following orders:a.That the Honourable court be pleased to set aside and/or review the orders of July 27, 2021 that dismissed this appeal and be pleased to reinstate the appeal for hearing on its merits.b.That the Honourable judge be pleased to allow the appellants/applicants to file and serve the record of appeal.c.That the costs of this application be provided for.

2. The application is premised on the grounds on the face of it and it is supported by the affidavit of Mr. Kirimi Mbogo sworn on October 28, 2021. He deposed that he was not invited for the mention that was scheduled on July 27, 2021 when the appeal was dismissed. According to him, he got to learn about the said dismissal on October 25, 2021 when he attended the court registry with a view of filing the record of appeal. The applicant further deposed that his advocate was sick at the time after he had been accosted by thugs.

3. The application is opposed by the replying affidavit of the respondent sworn on December 14, 2021. He deposed that the applicant was not committed in prosecuting his appeal as he filed the present application 3 months after institution of the appeal. The respondent further deposed that the allegation that the Applicant’s counsel was undergoing health challenges is not an excuse for not prosecuting the appeal as the said counsel was accosted in September 2020 while the appeal was filed in January 2021.

4. The application was canvassed by way of written submissions.

5. The appellant filed his written submissions on March 2, 2022. He submitted that the appellant has a constitutional right to be heard. The appellant faulted the court’s process server for not serving the appellant’s counsel with a hearing notice or informing the advocate of the mention date. That notwithstanding, the appellant further submitted that he should not be condemned to suffer for the mistake and error by his counsel. He thus prayed for the application to be allowed.

6. On his part, the respondent filed his written submissions on May 5, 2022. It was his submission that the applicant has been indolent to prosecute his appeal and has not provided sufficient reasons for the same. He relied on the case of Savings and Loans Limited –vs- Susan Wanjiru MurituNairobi (Milimani) HCCS No. 397 of 2002 and submitted that it was upon the applicant to follow up on his matter and ensure that it is prosecuted to its conclusion. The Respondent further submitted that the appellant’s appeal does not have any chances of success and thus prayed for the application to be disallowed.

7. The only issue for determination is whether the appeal should be reinstated and heard on its merit.

8. The appeal was instituted vide the Memorandum of Appeal dated January 29, 2021. This appeal was dismissed on July 27, 2021 for none attendance by the appellant or his counsel on record. This was six months after the appeal was filed.

9. An applicant seeking reinstatement of a dismissed appeal is obligated to show that he was prevented by any sufficient cause from appearing when the appeal was called for hearing. [See: Habo Agencies Limited v Wilfred Odhiambo Musingo [2020]eKLR].

10. In this case, the applicant has put forth several grounds to explain why there was no appearance in Court on 27th July 2021 and to justify reinstatement of the appeal. First, the Applicant contends that the court did not communicate the mention date to him. I note that emails from this court were sent to the address kirimimbogo@yahoo.com and not kirimi_mbogo@yahoo.com which was the email address provided by the applicant’s counsel. It is thus believable that the counsel for the appellant did not receive the communication by this court vide the emails dated June 2, 2021 and May 19, 2021.

11. It is also the applicant’s contention that the failure to attend court on July 27, 2021 was occasioned by the mistake of his advocate which should not be visited on him. in the case of Belinda Murai & 9 others v Amos Wainaina [1978] eKLR it was held that the court may excuse a genuine mistake on the part of counsel where it is satisfied that such mistake existed.

12. In this case, the Applicant alleges that his advocate, Mr. Kirimi Mbogo, was accosted in September 2020 leading to serious health and security challenges to his person. According to the Applicant, the said incident affected the professional output of the advocate and compromised his diligence. He thus submitted that the mistake of the advocate should not be visited on him. The Respondent has refuted this claim as a ground for not prosecuting the appeal stating that it does not constitute a valid excuse as the appeal was filed post the incident.

13. This court is however called upon to do substantive justice. To do so, the court has inherent powers to give orders which are necessary to meet the ends of justice. Section 3A 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.”

14. This is further buttressed by Section 1A & 1B of the Civil Procedure Act which provides for overriding objectives of the Act which is to facilitate the just, expeditious and affordable resolution of disputes. It is also provided under the new constitutional dispensation that courts are called to strife to do substantive justice other than giving undue reliance on procedural technicalities. article 159 2 (d) of the Constitution provides that “Justice shall be administered without undue regard to procedural technicalities.”

15. The ground that the applicant was not informed of the court date in question, is in my view sufficient to explain the applicant’s none attendance on July 27, 2021.

16. The upshot of the foregoing, is that the application has meritsIn Conclusion:I Order that:1. The application dated October 28, 2021 is allowed.2. The Appeal is reinstated and shall be heard on merits.3. The applicant to file and serve the record of appeal within 30 days.4. Costs shall be in the cause.

DATED, SIGNED AND DELIVERED AT CHUKA THIS 7TH JULY 2022. L.W. GITARIJUDGE