[2022] KEHC 16499 (KLR)

Mwangi & another v Mwaniki (Suing as the legal representative of the Estate of Peterson Maina Mwaniki) (Miscellaneous Application E027 of 2022) [2022] KEHC 16499 (KLR) (15 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16499 (KLR)

Republic of Kenya

In the High Court at Kiambu

Miscellaneous Application E027 of 2022

RB Ngetich, J

December 15, 2022

Between

Njoroge Mwangi

1st Applicant

Paul Nchore Mogeni

2nd Applicant

and

Andrew Francis Kariti Mwaniki (Suing as the legal representative of the Estate of Peterson Maina Mwaniki)

Respondent

Ruling

1. The application before the court for determination is the application dated June 30, 2020 seeking reinstatement of the application dated February 17, 2022 seeking stay of execution and leave to appeal out of time.

2. The application is premised on the grounds that therespondent has commenced execution against the judgment of the trial court in Ruiru CMCC No E023 of 2020.

3. The application is opposed by thereplying affidavit of the respondent sworn on July 12, 2022, by Andrew Francis Karirti Mwaniki. He disposes that the applicants complied with conditional stay orders of March 7, 2022after the application dated February 17, 2022was dismissed for want of prosecution.

4. The respondent further stated that the application seeking a stay of execution and leave to appeal out time is a delay tactic on the part of the applicant in complying with the judgment of the trial court.

5. That the applicant’s action of filing several applications and failing to prosecute them is an abuse of the court process and a waste of the court’s time. That the respondent continues to mourn the loss of his brother and the applicant has not adduced tangible reasons as to why the application should be reinstated. He urged this court to dismiss the application herein.

Respondent’s Submissions 6. Ms Wanjiru counsel for the respondent filed the submissions on August 30, 2022. She submitted that the applicants have not adduced sufficient reasons for the failure to attend court; that the respondent’s justice is being delayed for no reason and his pain is prolonged.

7. Counsel further submitted that the stay orders issued by the court on March 7, 2022 were conditional on the applicants depositing the decretal amount in Ruiru SPMCC NO E23 of 2020 into court, a condition which was only complied with after the application was dismissed and the orders were not extended.

8. Counsel further contends that the applicants have not demonstrated the loss to be suffered if the stay of execution is not granted and submitted that the applicants have not come to court with clean hands; that they have shown laxity, frivolous mistakes, arrogance and utter disrespect of the court and undeserving of the orders. Counsel pleaded with the court to dismiss the application with costs to therespondent.

Analysis And Determination 9. I have considered grounds of the application, averments in affidavits and submissions filed. The issue for determination is whether the application is merited.

10. Record shows that the application dated February,17 was dismissed on May 17, 2022for want of prosecution. The applicant thereafter filed the application dated June 6, 2022 seeking to set aside the orders of this court of May 17, 2022 dismissing the application dated February 17, 2022and reinstate the application for hearing on merit and stay of execution of the judgment in Ruiru SPMCC No E23 of 2020.

11. Before the application dated June 6, 2022was heard and determined, the applicant filed the current application dated June 30, 2020seeking the same orders.

12. The court on July 4, 2022, issued a stay of execution on the condition the applicant complies with the orders of the honourable court of March 7, 2022issued by Justice Kasango to deposit the decretal amount in Ruiru SPMCC No E23 of 2020 into court.

13. On July 20, 2022when the application came up for hearing, the applicants were not present. The court gave directions that the application does proceed by way of written submissions, further directions were to have the applicants served with the court directions. The applicants did not comply with the orders. There was an affidavit of service by the firm of Wanjiru Mwangi advocates for the respondent filed on October 26, 2022.

14. Order 12 rules 1 and 7 of the Civil Procedure Rulesempowers the court to dismiss a suit for want of attendance by the parties and for reinstatement of thereof upon application:Rule 1; If on the day fixed for the hearing, after the suit has been called on for hearing outside the court, neither party attends, the court may dismiss the suit.Rule 7. Where under this Order judgment has been entered or the suit has been dismissed, the court, on application, may set aside or vary the judgment or order upon such terms as may be just.

15. From the record counsel for the applicant has filed several applications before the court but failed to prosecute the said applications. Counsel has not adduced sufficient reasons for non-attendance of the court on May 17, 2022 to prosecute the application datedFebruary 17, 2022

16. Counsel for the applicant is apprehensive that the respondent will proceed with the execution of the trial court’s judgment and which prompted counsel to file the instant application.

17. According to counsel for the respondent, the applicants failed to comply with the stay orders until the application was dismissed.

18. The applicant’s counsel is guilty of negligence in handling the matter. Despite filing the current application for reinstatement and being given a chance to prosecute the same, counsel failed to attend court for the application; counsel also failed to adhere to the directions of filling submissions to the application.

19. Applicant has been indolent in prosecuting the matter; her conduct is wanting. The court cannot aid an indolent party in prosecuting their matter.

20. From the foregoing, the applicants have not demonstrated reasons to warrant reinstatement of the application dated February 17, 2022. Litigation must come to an end. The respondent should be allowed to enjoy the fruits of the judgment. The application for reinstatement is without merit.

Final Orders:1. Application dated June 30, 2020 is hereby dismissed.2. Costs to the respondent.

RULING DELIVERED, DATED AND SIGNED VIRTUALLY AT KIAMBU THIS 15TH DAY OF DECEMBER, 2022. ………………………………RACHEL NGETICHJUDGEIn the Presence of:Kinyua/Martin – Court AssistantsMs. Mwangi for RespondentMs. Kinyanjui holding brief for Ms. Ongwenyi for Applicant