[2023] KEELC 15971 (KLR)

Njawe & 2 others v Okello (Environment & Land Case E003 of 2022) [2023] KEELC 15971 (KLR) (9 March 2023) (Ruling)

Neutral citation: [2023] KEELC 15971 (KLR)

Republic of Kenya

In the Environment and Land Court at Siaya

Environment & Land Case E003 of 2022

AY Koross, J

March 9, 2023

Between

Martin Acholla Njawe

1st Plaintiff

Julius Onyango Njawe

2nd Plaintiff

George Omondi Njawe

3rd Plaintiff

and

Omondi James Okello

Defendant

Ruling

Plaintiff's case 1. By a notice of motion dated 8/12/2022 in which this court was moved pursuant to the provisions of Sections 3A and 63(e) of the Civil Procedure ACT and Orders 45 of the Civil Procedure Rules, the plaintiffs sought the following reliefs: -a.Spent;b.That the Honourable court be pleased to vary, rescind and/or set aside its orders issued on 20/09/2022 and 22/11/2022 dismissing the plaintiffs suit for non-attendance and all other consequential orders made thereto;c.That the honourable court be pleased to reinstate the plaintiffs suit and it be heard by viva voce evidence; andd.Costs be provided for.

2. The motion is based on the grounds set out on its face and on the supporting affidavit of the plaintiffs’ counsel Alego Wilson Otieno dated 8/12/2022.

3. Counsel deposed inter alia, he was conversant with the facts appertaining to the issues in dispute; on 20/9/2022, the plaintiffs’ suit was dismissed for want of attendance; an application by the plaintiffs dated 21/09/2022 to reinstate the suit was dismissed on 22/11/2022 for want of attendance; on 22/11/2022, the 1st plaintiff attended the wrong court since the suit was not cause listed and when he attended court, the motion had been dismissed; an oral application to set aside the orders were disallowed by the court; the plaintiffs had since instructed counsel on record to take over the conduct of the matter and, the plaintiffs had a right to fair hearing.

Defendant’s case 4. Understandably, the defendant Omondi James Okello who acted in person filed a strange document which he referred to as responses against applicant’s submissions and supporting affidavit. He contended the plaintiffs and their counsel were privy to the hearing date of 22/11/2022 and there was no evidence the 1st plaintiff was present in court on 22/11/2022.

Plaintiffs’ written submissions. 5. As directed by the court, Mr. Alego, counsel for the plaintiff, filed his written submissions dated 29/12/2022. Counsel submitted the plaintiffs had demonstrated their keenness to prosecute the case. Counsel placed reliance on the case of Mutinda Musila Malua v Ngunga Yatta, Deputy County Commissioner Kitui West- Sub County & 2 others [2021] eKLR.

6. Counsel asserted the application dated 8/12/2022 was unopposed and the mistakes of Counsel should not be visited on the litigants and to this end, counsel cited the case of HAM v SOS [2021] eKLR where the court stated: -‘My view is that the mistake on the part of counsel in the circumstances, is excusable and the door of justice ought not to be closed to the Applicant.’

Defendant’s written submissions 7. In his undated submissions, the defendant urged this court to disallow the motion. He asserted that having been served with a mention notice for 22/11/2022, he duly attended court yet the plaintiffs never bothered to attend. He would be prejudiced if the motion was allowed.

Analysis and determination 8. I have carefully considered the motion, its grounds, affidavits and respective parties’ rival submissions and the issues falling for determination are;a.Whether the motion is merited; andb.What about costs?

9. As rightfully submitted by the plaintiff’s counsel, review of court decrees or orders are provided for within the provisions of Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules. Section 80 donated power to the plaintiffs to move this court and similarly bestowed jurisdiction upon this court. Order 45 sets out the Rules of procedure. Reviews are also pivoted on Sections 1A, 1B, 3 and 3A of the Civil Procedure Act. Generally, they stipulate the objectives of the Act and the overarching duties of courts. Section 63 (e) gives this court jurisdiction to issue interlocutory orders.

10. This court has inherent powers to give orders which are necessary to meet the ends of justice. Section 3A of the 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.’

11. Section 3A of the Civil Procedure Act is further buttressed by Section 1A and 1B of the Civil Procedure Act which provide the overriding objective of the Act is to facilitate the just and expeditious resolution of disputes.

12. A reading of the prayers sought by the plaintiffs show they have bundled two orders for variation into one; they seek for a variation and/or setting aside of the orders issued by this court on diverse dates of 20/09/2022 and 22/11/2022. Obviously, these reliefs cannot be anchored on review. The former order which was on dismissal of a suit for want of prosecution ought to have been anchored on Order 12 Rule 7 of the Civil Procedure Rules. It provides as follows: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.’

13. Notwithstanding parties are expected to guide courts on the applicable law they seek to rely upon in support of their case, failure to properly cite a legal provision does not divest the court of jurisdiction to delve into the issue in dispute or render the application incompetent. The framers of the Civil Procedure Rules must have been alive to this fact when they enacted Order 51 Rule 10 of the Civil Procedure Rules.

14. The Court of Appeal decision of Pithon Waweru Maina -vs- Thuka Mugiria(1983) eKLR set out the principles that have long guided courts in exercising their judicious discretion on whether or not to reinstate a suit as follows;The matter which should be considered, when an application is made, were set out by Harris J in Jesse Kimani v McConnel [1966] EA 547, 555 F which included, among other matters, the facts and circumstances, both prior and subsequent, and all the respective merits of the parties together with any material factor which appears to have entered into the passing of the judgment, which would not or might not have been present had the judgment not been ex parte and whether or not it would be just and reasonable to set aside or vary the judgment, upon terms to be imposed. This was approved by the former Court of Appeal for East Africa in Mbogo v Shah [1968] EA 93, 95 F.’

15. The plaintiffs’ then counsel Wakla & Co. Advocates filed an application dated 21/09/2022 albeit erroneously dated the year 2021 in which they sought to reinstate the main suit which had been dismissed for want of attendance on 20/9/2022. The matter was placed before the Deputy Registrar on 2/11/2022 who in the presence of the plaintiffs’ counsel but in the absence of the defendant, issued a mention date before this court for directions. The date was 22/11/2022. In a similar fashion, neither the plaintiffs’ nor their counsel attended court. The application dated 21/09/2022 was dismissed. However, this court admits the case was not cause listed.

16. I have scrutinized the entire court record and save for the 20/9/2022 and 22/11/2022, the plaintiffs’ counsel had always been attending court. Counsel has satisfactorily explained the circumstances under which the plaintiffs and their counsel failed to attend court on the two days the matter was before this court. This court is satisfied with the reasons proffered. Additionally, the instant motion was filed less than a month after the plaintiffs’ application for reinstatement was dismissed for non-attendance; there was no inordinate delay.

17. The general principles of law on applications of this nature are anchored in the realm of judicial discretion. Reinstatement of a suit is at the discretion of the court which power should be exercised judicially. The case ofJohn Waweru Njenga & 5 others v Motor Botique Limited [2020] eKLR cited with approval the case of Shah v Mbogo and Another [1967] EA 116 where the Court of Appeal of East Africa held that:This discretion (to set aside ex parte Court decisions) is intended to be exercised to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake or error, but is not designed to assist a person who has deliberately sought, whether by evasion or otherwise, to obstruct or delay the course of justice.’

18. In my view, the overriding objective of our constitutional and statutory framework on civil procedure is to achieve substantive justice to the litigants.

19. The defendant had argued he would be prejudiced if the suit is reinstated. However, in my considered view, any inconvenience the defendant suffered may adequately be remedied by an award of throw away costs. This Court will thus exercise its discretion and reinstate the suit with appropriate conditions.

20. The upshot is that it is my finding the motion is merited and the same is allowed on the following terms;a.The order dismissing the suit for want of attendance is hereby set aside and the suit herein is hereby reinstated.b.The plaintiffs shall pay the defendant throw away costs of Ksh. 20,000/- within 14 days from today and in default, the order reinstating this suit shall stand vacated.c.Costs of the motion shall be borne by the plaintiffs.d.Hearing in open court on 16/05/2023.

DELIVERED AND DATED AT SIAYA THIS 9TH DAY OF MARCH 2023. HON. A. Y. KOROSSJUDGERuling delivered virtually through Microsoft Teams Video Conferencing Platform in the Presence of:Mr. Otieno for the plaintiffDefendant acting in person presentCourt assistant: Ishmael Orwa