[2023] KEHC 24794 (KLR)

Muthungu v Transporters & another (Civil Appeal 51 of 2022) [2023] KEHC 24794 (KLR) (3 November 2023) (Judgment)

Neutral citation: [2023] KEHC 24794 (KLR)

Republic of Kenya

In the High Court at Kerugoya

Civil Appeal 51 of 2022

LM Njuguna, J

November 3, 2023

Between

Joseph Kamotho Muthungu

Appellant

and

Highway Transporters

1st Respondent

Cannon Assurance Kenya Ltd

2nd Respondent

(Appeal from the Ruling of Hon. Cheruto C. Kipkorir PM Chief Magistrate’s Court Kerugoya Civil Case Number 17 of 1997 delivered on 11th May 2022))

Judgment

1. The appellant, being dissatisfied with the above-cited decision, filed memorandum of appeal dated 06th June 2022, seeking orders that the appeal be allowed, the ruling be set aside and costs of the appeal be borne by the respondents. The appeal is premised on the grounds that the learned magistrate erred in fact and in law:a.By failing to appreciate that the burden of proof lay squarely on the respondents to prove that they will be prejudiced if the suit is reinstated;b.By failing to appreciate that the suit was for compensation for loss of life of the applicant’s daughter and as such the penalty for not having his case heard is excessive and against the fundamental principles of natural justice;c.By failing to find that the applicant raised reasonable grounds for reinstatement and hence the court ought to have considered all the grounds raised and not just the issue of lapse of time;d.By failing to appreciate that Articles 50 and 159 of the Constitution on the right to be heard constitute the principles which should guide the court in making the decision on reinstatement of the suit;e.By failing to appreciate that the applicant will suffer injustice and hardship descended upon by the delay in prosecution of his suit which was not occasioned by the applicant but by the indolence of his previous counsels;f.By failing to consider and appreciate the evidence on record tendered on behalf of the appellant; andg.By giving a ruling that is not supported by law or evidence.

2. The appellant filed notice of motion seeking that the suit be reinstated for formal hearing and the notice to withdraw the suit be expunged from the court’s record. The application was premised on the grounds that the suit had not been dismissed but had merely been stood over generally. That the suit should be reinstated as the errors in the proceedings were occasioned by the appellant’s previous counsel who did not act in his interests. He averred that his application was barred by the Limitation of Actions Act and that he is solely depending on the court to grant the orders sought as it is in the interest of justice to do to. He deposed that he has been continuously following up on the suit but his counsel handled the case carelessly, causing him to resort to acting in person.

3. He stated that he inadvertently filed a notice to withdraw the suit against both respondents but he had only meant to withdraw against the 1st respondent only. That he will suffer prejudice if the orders are not granted as he will be unable to seek compensation for the death of his daughter. The application was deemed as unopposed as the trial court recorded that the replying affidavit was filed out of time and without the leave of court. The same was struck out and was not considered in the determination of the application.

4. The parties filed written submissions and the court considered them. The learned magistrate found and held that the applicant was not vigilant to pursue his case and that he himself dealt a blow into the life of the case. The application was dismissed and the suit marked as withdrawn.

5. In this appeal, the court directed that the parties file their written submissions and they all complied.

6. The appellant, in his submissions, stated that the suit was filed in the year 1997 and sometime between 1997-1998, the suit was stood over generally to allow for the parties to reach a settlement out of court by consent. That in 2004, the parties reached a consent on liability and then the appellant filed a notice to withdraw the suit, intending for it to only apply to the 1st respondent, but he inadvertently filed against both respondents. That he attempted to have the suit reinstated but his counsel at the time were not keen on his interests and therefore, it is their fault that the appellant is in this predicament. That the mistakes of counsel should not be visited on the clients. He cited the cases of Jim Rogers Gitonga Njeru Vs. Al’Hussein Motors Ltd & Another (2018) eKLR, Ivita Vs. Kyumbu (1984) eKLR, CMC Holdings Ltd Vs. James Mumo Nzioki (2004) eKLR, Belinda mwai & Others Vs. Amos Wainaina (1978) eKLR, Catherine Kigasia Kivai Vs. Ernest Ongeri Kivai & 4 Others (2021) eKLR and Phillip Chemowolo & Another Vs. Augustine Kubende (1982-1988) 1KAR 103. He submitted that in any event, he never received a notice to show cause why the suit should not be dismissed. That the trial court erred and that the appeal should be allowed.

7. In their submissions, the respondents stated that the suit had been dismissed on 11th December 2001. That the application for reinstatement dated 11th November 2021 is similar to the application dated 18th July 2017 seeking similar orders including orders that the court set aside its orders dated 11th December 2001 dismissing the suit. That the 2017 application was dismissed and that the application dated 11th November 2021 is res judicata and the appellant did not appeal against that decision. It was his case that the appellant filed the 2017 application 16 years after the court had dismissed the suit and the second application, which is the subject of this suit, 20 years after dismissal. That the accident occurred about 29 years ago and the 1st respondent is no longer in existence; therefore, it would be impossible to defend the suit owing to lost evidence. That the 2nd respondent was wrongfully enjoined in the suit as the appellant had no locus standi to sue the 1st respondent’s insurer. That the appellant was not diligent to prosecute the case and that even the application for reinstatement of the suit is fatally defective because it is not dated. They relied on the case of Bilha Ngonyo Isaac versus Kembu Farm Ltd & another & another [2018] eKLR.

8. From the foregoing, the issues for determination are:a.Whether the application to reinstate the suit is res judicata; andb.Whether the order for reinstatement of the suit should have been granted by the trial court.

9. I have perused the record of appeal and do note that on page 14 at line 10, the court marked the file as stood over generally when the matter was in court on 29th September 1998. The next time the matter was in court was on 01st September 2004 when a hearing date was set. On the date of the hearing, the court was away on official duties and the matter was stood over generally again and a new date was taken at the registry. On the hearing date being 28th November 2005, the appellant was absent and the matter was adjourned. The trend continued and on page 18 line 7-8 of the record of appeal, the record shows that on 24th July 2006, the appellant said that he was not ready to proceed as he had misplaced his documents.

10. Since 28th November 2006, there was no activity on the court file until 02nd March 2015 when the matter came up for directions. On 10th August 2017, the court noted that an application dated 18th July 2017 had been considered and dismissed. I have perused the trial court record and I note that the application dated 18th July 2017 is not therein. In light of this, I am unable to determine whether or not the undated application that was filed on 12th February 2021 is res judicata as it is not possible for me to peruse the prayers sought. The respondents in their submissions stated that the application dated 18th July 2017 was seeking orders that the order for dismissal of the suit be set aside.

11. In this appeal, I do not find a reason to explore the possibility that the subject application was res judicata as there is no other similar application that was heard and determined, to compare with, that would create the scene for application of this principle. Res judicata is provided for under Section 7 of the Civil Procedure Act as follows:“No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.”

12. On the second issue as to whether the trial court should have reinstated the suit, I take the view that in making this decision, a court of law must satisfy itself of the wholesome positive effect of the reinstatement. In other words, if reinstating the suit will avert proved grievous detriment based on the merits of the case, then the order must be granted. However, such an order is granted only at the court’s discretion which must be applied with great caution. In the case of Shah Vs. Mbogo & Another (1967) EA 116, the court stated on the matter of discretion:“The discretion is intended so as to be exercised to avoid injustice or hardship resulting from inadvertence or excusable mistake or error but is not designed to assist a person who has deliberatively sought whether by evasion or otherwise to obstruct or delay the course of justice.”

13. The court should consider why there has been great delay in prosecuting the suit. As explained hereinabove, the few times when the suit was scheduled for hearing, it was the appellant who was not ready for one reason or the other. The respondents submitted that in fact, the 1st respondent ceased to exist. The accident that would be the subject of this suit happened more than 29 years ago. From the proceedings, the appellant did not conduct himself like someone who is keen on completing the matter and the respondents were always recorded to dispute his constant requests for adjournment. In the celebrated case of Ivita Vs. Kyumbu [1984] KLR 441 the court stated:“The test is whether the delay is prolonged and inexcusable, and, if it is, can justice be done despite such delay. Justice is justice to both the Plaintiff and Defendant; so both parties to the suit must be considered and the position of the judge too, because it is no easy task for the documents, and, or witnesses may be missing and evidence is weak due to the disappearance of human memory resulting from lapse of time. The Defendant must however satisfy the court that it will be prejudiced by the delay or even that the plaintiff will be prejudiced. He must show that justice will not be done in the case due to the prolonged delay on the part of the plaintiff before the court will exercise its discretion in his favour and dismiss the action for want of prosecution. Thus, even if delay is prolonged if the court is satisfied with the plaintiff's excuse for the delay, the action will not be dismissed, but it will be ordered that it be set down for hearing at the earliest available time.”

14. Going by the submissions before me on appeal and the record of the lower court, it is my view that to reinstate the suit will do a greater disservice to the judicial system, and to the parties. Due to the passing of time, the availability of witnesses and evidence and the alleged non-existence of the 1st respondent, it will be difficult for the appellant to pick up from where he left off in 1998. In fact, to reinstate this suit is to subject it to a natural death and I do not think this court is at liberty to utilize judicial time and resources in that manner.

15. Eventually, litigation must come to an end and unfortunately for the appellant, this is the end of the road for his case (see the case of Jasbir Singh Rai & 3 Others Vs Tarlochan Singh Rai & 4 Others (2007) eKLR). It would be unconscionable to allow this application. I also base my findings on the fact that there has been unexplained inordinate delay in prosecuting the case.

16. In saying this, I am bound by the provisions of Article 159 of the Constitution and Sections 1A, 1B and 3A of the Civil Procedure Act which together breathe “oxygen” into the judicial system. I am also well apprehended of the discretion of this court to grant such orders but decline to do so in favour of the appellant because I am persuaded that failure to litigate this suit was occasioned by the appellant himself.

17. To this end, having considered the arguments made herein and the relevant case law, I find that the appeal lacks merit and is hereby dismissed with costs to the respondents.

18. It is so ordered.

DELIVERED, DATED AND SIGNED AT KERUGOYA THIS 3RD DAY OF NOVEMBER, 2023. L. NJUGUNAJUDGE…………………………………………for the Appellant……………………………………………for the Respondents