[2023] KEHC 26283 (KLR)

Mwangi v Kerui (Civil Suit 283 of 1998) [2023] KEHC 26283 (KLR) (Civ) (8 December 2023) (Ruling)

Neutral citation: [2023] KEHC 26283 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Suit 283 of 1998

CW Meoli, J

December 8, 2023

Between

Joseph Maina Mwangi

Plaintiff

and

Dickson Mbugua Kerui

Defendant

Ruling

1. For determination is the Notice of Motion dated 8th December, 2022 (the Motion) brought by Joseph Maina Mwangi (hereafter the Applicant) seeking the reinstatement of the suit and extension of time within which to prosecute the suit. The Motion is expressed to be brought under Sections 1A, 1B and 3A of the Civil Procedure Act (CPA); Order 51, Rule 1 of the Civil Procedure Rules (CPR) and Article 159(2) (b) of the Constitution.

2. The grounds on the face of the Motion are amplified in the supporting affidavit sworn by M.N. Ng’ang’a, the Applicant’s advocate, who averred that on 2nd June, 2022 the court directed that the suit be prosecuted within a limited period of six (6) months, failing which it would stand dismissed for want of prosecution. The advocate further averred that when the suit subsequently came up for hearing on 2nd November, 2022 the court observed that Dickson Mbugua Kerui (hereafter the Respondent) had not been served in person with the requisite court process, and hence the hearing could not proceed. That efforts to trace the whereabouts of the said Respondent had proved futile. That in the circumstances, no prejudice will be suffered by the Respondent if the orders sought herein are granted.

3. The Respondent resisted the Motion by filing Grounds of Opposition dated 31st May, 2023 containing a total of 31 grounds which by and large challenged the competency of the Motion. On grounds inter alia that, the said Motion was filed after the lapse of the timelines given for prosecution of the suit vide the order of 2nd June, 2022 and hence there was nothing left to extend; that the Applicant did not comply with the orders directing personal service of the requisite notices and documentation upon the Respondent and notwithstanding the fact that the Respondent has always been readily available to accept service thereof; and that even after being granted several opportunities, the Applicant has remained indolent in prosecuting the suit, hence, the Motion should be dismissed with costs to the Respondent.

4. The Motion was to be canvassed by way of written submissions. In his submissions, the Applicant’s counsel echoed the averments earlier made in support of the Motion and urged the court to grant the orders sought therein.

5. The Respondent’s advocate did file written submissions instead opting to rely on the Grounds of Opposition.

6. The Court has considered the affidavit material, the Grounds of Opposition and submissions made in respect of the Motion. The Motion seeks the reinstatement of the suit as well as the extension of time to enable the Applicant prosecute it. The court will deal with both prayers contemporaneously.

7. As earlier mentioned, the Motion was brought under Article 159(2) (b) of the Constitution, Sections 1A, 1B & 3A of theCPA and Order 51, Rule 1 of theCPR. While Sections 1A, 1B and 3A provide for the overriding objectives of the Act, Order 51, Rule 1 merely sets out the nature of application to be filed by a party where no specific provisions exist setting out such procedure. The aforementioned Article 159(2) (b) of the Constitution on its part provides that justice shall not be delayed.

8. Section 3A of the CPA in particular, reserves the inherent power of the court “to make such orders as may be necessary for ends of justice or to prevent abuse of the process of the court.” The Court of Appeal inRose Njoki King’au & Another v Shaba Trustees Limited & Another [2018] eKLR stated thus:“Also cited was Section 3A of the Civil Procedure Act which enshrines the inherent power of the Court to make such orders as may be necessary for ends of justice or to prevent abuse of the process of the Court. In Equity Bank Ltd versus West Link Mbo Limited [2013], eKLR, Musinga, JAstated inter alia, that, by “inherent power” it means that“Courts of law exist to administer justice and in so doing, they must of necessity balance between competing rights and interests of different parties but within the confines of law, to ensure that the ends of justice are met. Inherent power is the authority possessed by a Court implicitly without its being derived from the Constitution or statute. Such power enables the judiciary to deliver on their constitutional mandate…..inherent power is therefore the natural or essential power conferred upon the court irrespective of any conferment of discretion.”

9. The Supreme Court further noted the following in Board of Governors, Moi High School Kabarak and another v Malcolm Bell [2013] eKLR:“Inherent powers are endowments to the court as will enable it to remain standing as a constitutional authority and to ensure its internal mechanisms are functional. It includes such powers as enable the Court to regulate its intended conduct, to safeguard itself against contemplation or descriptive intrusion from elsewhere and to ensure that its mode of disclosure or duty is consumable, fair and just.” (sic)

10. The Motion herein was brought after the lapse of the six (6) month timeline within which the Applicant had been directed to prosecute the suit, pursuant to the order made on 2nd June, 2022. It therefore follows that the suit stood dismissed for want of prosecution upon the lapse of the prescribed timelines. Be that as it may, under the provisions of Section 95 of the CPA and Order 50, Rule 6 of the CPR, courts have discretionary power to enlarge the time required for the performance of any act under the Rules even where such time has expired.

11. The grant or refusal to set aside or vary an order, judgment or any consequential decree or order, is discretionary, wide, and unfettered. However, the discretion must be exercised judicially and justly. The rationale for the discretion to set aside as conferred on the court was spelt out in the case ofShah v Mbogo and Another [1967] E.A 116:“The discretion to set aside an ex-part judgment is intended to be exercised to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake or error but it is not designed to assist a person who has deliberately sought whether by evasion or otherwise to obstruct or delay the cause of justice.”

12. The record discloses the following pertinent events leading to the dismissal order. The Applicant instituted the suit vide the plaint filed on 11th February, 1998. The suit was founded on negligence, the Applicant seeking various reliefs against the Respondent for injuries allegedly sustained as a result of the Respondent’s negligence. The record shows that the Respondent subsequently filed his statement of defence on 11th June, 2001. Sometime thereafter, the insurance company which had instructed the firm of Mbugua Atudo & Macharia Advocates to act for the Respondent in defending the suit, was wound up.

13. Consequently, when the Applicant’s advocate attended court on 21st April, 2022 for the hearing, he was directed to effect personal service of the court process directly upon the Respondent. The Applicant’s advocate attended court on 2nd June, 2022 but it was noted that no personal service of the requisite notices had been effected upon the Respondent. Upon considering the age of the suit coupled with the absence of any indication as to active steps taken in prosecuting the suit, the court ordered that the suit be prosecuted within a period of six (6) months therefrom, failing which it would automatically stand dismissed for want of prosecution.

14. The record shows that the Applicant subsequently attended court on 24th November, 2022 accompanied by his advocate. Nevertheless, the Applicant had not complied with the aforementioned order of 2nd June, 2022 requiring that personal service be effected upon the Respondent, the Applicant electing instead, contrary to the court’s directions, to effect service upon the selfsame firm of Mbugua Atudo & Macharia Advocates. In the circumstances, the court declined to proceed with the hearing and ordered that the strict timelines for prosecution of the suit would continue to run.

15. From the foregoing, it is clear that there has been non-compliance on the part of the Applicant with previous court orders, even after several opportunities were extended to him to comply and progress his case. While the Applicant’s advocate asserted difficulties in tracing the whereabouts of the Respondent, no credible evidence has been tendered before the court to demonstrate the efforts through an affidavit of a process server, or the like. The suit belongs to the Applicant and he must take responsibility for the overall delay and tardiness in the case during which untoward events rendered progressing of his case even more difficult. That is the natural consequence of delay, in this case of a suit filed in 1998.

16. It cannot be emphasized enough that courts do not issue orders in vain. Court orders must and ought to be obeyed. This principle was aptly spelt out by the Court of Appeal in Omega Enterprises (K) Ltd v KTDA 1993 LLR2525 (CAK) when it held that:“It is the plain and unqualified obligation of every person in respect of whom an order is made by a court of competent jurisdiction to obey it unless and until that order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends to cases where the persons affected by an order believe it to be irregular or even void…A party who know of an order, whether null or valid, regular or irregular, cannot be permitted to disobey it … It would be most dangerous to hold that the suitors or their solicitors could themselves judge whether an order was null or valid, whether it was regular or irregular. That they should come to court and take it upon themselves to determine such a question. That the course of a party knowing of an order, which whether null or irregular, and who might be affected by it, was plain. He should apply to court that it be discharged. As long as it existed, it must not be disobeyed.”

17. In the present instance and as earlier mentioned, the Applicant did not comply with the relevant court orders and did not tender any credible material to demonstrate any active steps taken in complying. In the circumstances and upon noting the age of the matter, the court is of the view that the Applicant has not provided sufficient reasons to incline the court to exercise its discretion in his favour. I daresay that this could well be the classic case where prolonged delay would render mounting a fair trial difficult as witnesses and records could well have vanished during the 25 years of the suit’s pendency. To reinstate this suit in the circumstances would run afoul of the overriding objective in Section 1A of the Civil Procedure Act. Namely, to facilitate the just, expeditious, proportionate and affordable resolution of the civil disputes governed by the Act. See Karuturi Networks Limited &Another vs Daly & Figgis Advocates (2009) eKLR.

18. Consequently, the Notice of Motion dated 8th December, 2022 is found to be without merit and is hereby dismissed, with costs to the Respondent.

DELIVERED AND SIGNED ELECTRONICALLY AT NAIROBI ON THIS 8TH DAY OF DECEMBER 2023. C.MEOLIJUDGEIn the presence ofFor the Applicant: Ms Nzilani holding brief for NgangaFor the Respondent: Mr Angwenyi