[2022] KEHC 17078 (KLR)

Ngumi v Warshow & another (Civil Appeal 49 of 2011) [2022] KEHC 17078 (KLR) (13 May 2022) (Ruling)

Neutral citation: [2022] KEHC 17078 (KLR)

Republic of Kenya

In the High Court at Mombasa

Civil Appeal 49 of 2011

MN Mwangi, J

May 13, 2022

Between

Isaiah Waweru Ngumi

Appellant

and

Ahmed Warshow

1st Respondent

Thomas Gambira Davis Bockle t/a Elite Steel Erection Company

2nd Respondent

Ruling

1. The application before this Court is dated June 24, 2021. It has been brought under the provisions of Sections 3A & 63(c) of the Civil Procedure Act, Order 51 of the Civil Procedure Rulesand all other enabling provisions of the law. The appellant/applicant seeks the following orders-i.Spent;ii.That the orders made on August 31, 2018 dismissing the applicant’s appeal be set aside and the appeal be reinstated; andiii.That the costs of the application be in the cause.

2. The application is supported by the affidavit sworn on June 24, 2021 by Grace Okumu, the applicant’s learned Counsel. She deposed that despite the Chief Magistrate’s Court being requested to forward the lower Court file by the High Court after the filing of the Memorandum of Appeal on April 8, 2011, the said file was never forwarded. That on July 26, 2018, directions were given for the lower Court file be traced and be placed in the appeal file and that the appeal was then listed for mention on October 2, 2017 for directions. It was stated that on the said date, the Court did not sit.

3. Ms Okumu further averred that the applicant wrote several letters to the Chief Magistrate’s Court requesting for the file be availed, to no avail. She deposed that efforts to list the appeal for hearing were all in vain, since the Court file went missing as evidenced by the copies of invitation letters annexed to the affidavit and marked as annexure 'GAO 3'. She deposed that she was surprised when she was served with a Notice to Show Cause dated May 21, 2018, yet the appeal was coming up for hearing on July 26, 2018.

4. She deposed that she did not in any way contribute to the non-prosecution of the appeal and that all along, she had been waiting for the lower Court file to be availed, and that it came as a surprise when the appeal was dismissed for want of prosecution on August 31, 2018. She stated that it was in the interest of justice for the instant application to be allowed and for the orders sought to be granted.

5. She prayed for the Executive Officer to be directed to produce the lower Court file CMCC No 3695 of 2005 Isaiah Waweru Ngumi vs Ahmed Warshow & Thomas Gambra Davis Bockle T/A Elite Steel Erection Company and for the said file to be placed in the appeal file.

6. Mr Abdulhafeez Noorani, learned Counsel for the 1st respondent, through a replying affidavit sworn on October 15, 2021 opposed the instant application and averred that the applicant’s suit was dismissed with costs in the lower Court and despite filing a Memorandum of Appeal on April 8, 2011, the applicant was never interested in prosecuting the appeal. He averred that the applicant only used to be prompted to act by letters from the respondent’s Counsel on record and that is why a Record of Appeal was filed on July 13, 2016, which is approximately five years after the Memorandum of Appeal had been filed.

7. The deponent also averred that it was not true that the appeal file has been missing. He stated that to the contrary, the applicant was informed that the appeal file was in the High Court archives awaiting their action and in any event, if the file was indeed missing, then the applicant never made any serious effort to trace the file and or have the file reconstructed. Mr Noorani deposed that strangely, the missing file has mysterious appeared after all the years it has been missing.

8. He further deposed that as far as he was aware, the appeal last came up in Court on October 2, 2017 for mention, but the Court was not sitting, and since then, the applicant had failed to make any attempts to fix a fresh date for the appeal and therefore, the Court Registry should not be blamed for the applicant’s indolence.

9. He further deposed that the 1st respondent was never aware of the purported hearing date for the appeal on July 26, 2018. He stated that it was baffling as to how the applicant managed to fix the matter for hearing on the said date whilst according to his Advocates, the Court file was missing.

10. He averred that despite the applicant admitting to having received the Notice to Show Cause letter, he still opted not to turn up and show cause why the appeal should not be dismissed for want of prosecution. Mr Noorani averred that up to date, no plausible or reasonable explanation has been advanced for this Court to consider as to the non-attendance of the Notice to Show Cause on August 31, 2018. The 1st respondent’s deponent deposed that the instant application is an afterthought, having been filed on June 24, 2021, almost three years after the appeal was dismissed.

11. The application herein was canvassed by way of written submissions. The law firm of GA Okumu & Co Advocates filed written submissions on behalf of the appellant on October 27, 2021. The submissions by the 1st respondent’s Counsel were filed on November 30, 2021 by the law firm of Daly & Inamdar Advocates LLP. The 2nd respondent did not participate in the application.

12. Ms G Okumu, submitted that the applicant has a meritorious claim which raises triable issues and if the appeal is not reinstated, the applicant would be condemned unheard which is contrary to the rules of natural justice guaranteed in theConstitution under Article 50(1).

13. She submitted that failure to set down the matter for hearing was as a result of the unavailability of the lower Court file and that the applicant should not suffer for the mistakes of the Court Registry. She relied on Gideon Moses Onchwati vs Kenya Oil Co Ltd & another [2017] eKLR, where the Court held that a litigant ought not to bear the consequences of the Advocates’ defaults unless the litigant is privy to the said defaults or the default results from failure on the part of the litigant to give the Advocate due instructions.

14. On whether respondents stand to suffer prejudice if the orders sought are granted, Ms Okumu submitted that an award of costs is sufficient to compensate the respondents for any inconvenience that may be caused to them by the reinstatement of the appeal. She further submitted that it is trite law that suits should be heard on merits at the full hearing where all issues raised in the pleadings can be fully ventilated.

15. Mr Noorani, submitted that the applicant has wrongly relied on Order 12 Rule 7 of the Civil Procedure Rules as the guiding principle the Court ought to invoke in setting aside the order for dismissal of the appeal. He stated that the application before this Court seeks the reinstatement of an appeal which was dismissed for want of prosecution under Order 17 Rule 2 of the Civil Procedure Rules. He stated that when dealing the instant application, the Court should be guided by the principles set down in Ivita vs Kyumbu [1984] KLR 441, which are:-(i)The reasons for the delay;(ii)Whether the delay is prolonged and inexcusable;(iii)If justice can still be done despite the delay and;(iv)If the application before Court is frivolous, vexatious and an abuse of the Court process.

16. On the issue of the reasons for the delay, Mr Noorani submitted that the grounds on the face of the application do not set out clearly the reasons why the appeal should be reinstated and the delay of about three years in bringing the instant application has not been explained whereas the applicant was aware that the appeal had been dismissed on August 31, 2021. The Counsel for the 1st respondent further submitted that the explanation that the Court file was not available is not a good reason, since the applicant had the option of having the file reconstructed.

17. On whether the prolonged delay by the applicant is excusable, Mr Noorani submitted that the applicant herein failed to prosecute his appeal for approximately seven (7) years and no explanation and the steps that he had taken to prosecute the appeal had been demonstrated. He submitted that the applicant slept on his rights and filed the instant application almost three years later. Mr Noorani cited the decision in Simon Wachira Nyaga v Patricia Wamwirwa [2018] eKLR, where the Court upheld the doctrine of equity, in that 'equity helps the vigilant but not the indolent'. He stated that the law encourages a speedy resolution for every dispute.

18. He also cited the Court of Appeal decision in Cecillia Wanja Waweru v Jackson Wainaina Muiruri & another [2013] eKLR, where the Court held that a delay of a period of 40 days in bringing an application for reinstatement was inordinate and inexcusable and the appeal therein was dismissed with costs.

19. On whether the 1st respondent stands to suffer prejudice, Mr Noorani submitted that there is an automatic presumption of prejudice against the said respondent and having shown that the delay of almost three (3) years on the part of the applicant was inordinate, the 1st respondent was not required to prove the nature of the prejudice he stands to suffer, since prejudice already exists.

Analysis And Determination 20. I have considered the application, the supporting affidavit, the replying affidavit, and submissions of Counsel on record. The only issue for determination is whether the applicant has satisfied this Court that he deserves to have the appeal reinstated.

21. The discretion of the Court to vacate and/or set aside any order issued exparte is unfettered, such discretion should however be exercised judiciously and on a case by case basis, which means that the facts of each case and the circumstances of both the dismissal and application for setting aside the dismissal should be carefully interrogated by the Court. In Nilesh Premchand Mulji Shah & Another t/a Ketan Emporium v MD Popat and others & another [2016] eKLR, the Court stated as follows-'11. Nonetheless, Article 159 of theConstitution and Order 17 Rule 2(3) gives the court the discretion to dismiss the suit where no action has been taken for one year and on application by a party as justice delayed without explanation is justice denied and delay defeats equity. That discretion must be exercised on the basis that it is in the interest of justice regard being had to whether the party instituting the suit has lost interest in it, or whether the delay in prosecuting the suit is inordinate, unreasonable, inexcusable, and is likely to cause serious prejudice to the defendant on account of that delay. This is what the case of Ivita vs Kyumba [1984] KLR 441 espoused that.'

22. In Ivita vs Kyumbu [1984] KLR 441, the Court laid down the principles for issuance of an order of dismissal of suit for want of prosecution. It 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.'

23. The questions which this Court is interested in finding the answers to, are the applicant's explanation for non-attendance of Court to defend the Notice to Show Cause on August 31, 2018; whether any prejudice will be suffered by either the applicant or the respondents should the exparte orders be set aside and the appeal reinstated to hearing and disposal on the merits and whether there was unreasonable delay on the part of the applicant in bringing the instant application.

24. It is manifest from the record that the reason why the appeal was dismissed in the first place was because the Court was satisfied that the applicant was lax in his pursuit to have the lower Court file availed to the High Court for the hearing of the appeal.

25. From the pleadings, it is discernible that it has been admitted in the applicant’s affidavit that the applicant was indeed served with a Notice to Show Cause dated May 21, 2018. The applicant’s Counsel who is the deponent in the affidavit in support of the application has not given any reason at all as to why she did not attend Court for the Notice to Show Cause that was scheduled for the August 31, 2018. The applicant’s Counsel has averred that the applicant was surprised when the appeal was dismissed for want of prosecution on August 31, 2018. Therefore, if at all the applicant was in the loop on the dismissal of the appeal, this Court is left wondering why the instant application for the reinstatement of the appeal was not filed promptly or timeously.

26. I have carefully considered the depositions by the applicant’s Counsel and I find that no reasonable explanation has been proffered by the applicant as to why the instant application for the reinstatement of the appeal was filed on June 24, 2021, yet the appeal was dismissed for want of prosecution on August 31, 2018. One would have expected that the application to reinstate the appeal would have been filed immediately after dismissal of the appeal. The instant application was filed on June 24, 2021 which is nearly three years from the date of dismissal. Since no explanation has been given for the inordinate delay, in my considered view, the applicant has displayed an uncaring attitude, which does not call for this Court to exercise its discretion in his favour.

27. In the case of Fran Investments Limited Vs G 4 S Securities Limited [2015] eKLR, the Court expressed itself as follows on the issue of inordinate delay for a litigant seeking orders for reinstatement of a suit-'Again, if the Applicant was as vigilant as he claims to be, it is irreconcilable that they discovered the suit had been dismissed on February 17, 2014 – four years since the defence had been struck out. Such delay is not inadvertent as alleged by the Applicant; it is deliberate, as a party is expected to prosecute their cases without delay. The delay has not been satisfactorily explained and is a source of prejudice to the Respondent as well as to the fair administration of justice. These are sufficient reasons to refuse to reinstate the suit and let it lie in peace in its judicial grave. The amount of time which has passed by will not allow any, and is not conducive to having a fair trial in this matter'.

28. Similarly, in the case of Peter Kinyari Kihumba vs Gladys Wanjiru Migwi & another CA Civil Application No NAI 121 of 2005 (6/05 NYR) (unreported) the Court held that-'With respect, l think the applicant and his counsel adopted a casual attitude to this litigation and they have no one but themselves to blame if no further indulgence is extended to them. The plea they made is that this is a land matter, but the simple answer is that even in land matters there must be an end to litigation'.

29. Taking into totality all the circumstances of this application, and in the absence of any reasonable explanation as to why there was inordinate delay in bringing the instant application, I hold that the applicant exhibited a callous attitude towards prosecution of his appeal.

30. In addition, nothing stopped him from having the appeal listed for mention for directions after October 2, 2017 being the date this Court did not sit. There is as such no justification for this Court to set aside the dismissal order of August 31, 2018.

31. I therefore hold that the Notice of Motion application dated June 24, 2021 is bereft of merit and the same is dismissed with costs to the 1st respondent.

It is so ordered.DELIVERED, DATED, and SIGNED VIRTUALLLY AT MOMBASA THIS 13TH DAY OF MAY, 2022. Ruling delivered through Teams Online Platform.NJOKI MWANGIJUDGEIn the presence of-Ms G. Okumu for the appellantNo appearance for the respondentsMr. Oliver Mususndi – Court Assistant.