[2022] KEHC 465 (KLR)

Njega & another v Embu Gaturi Housing Co-op Soc. Ltd & another; Njogu (Applicant) (Civil Appeal 22 of 2014) [2022] KEHC 465 (KLR) (11 May 2022) (Ruling)

Neutral citation: [2022] KEHC 465 (KLR)

Republic of Kenya

In the High Court at Embu

Civil Appeal 22 of 2014

LM Njuguna, J

May 11, 2022

Between

Wamae Njega

1st Appellant

Simon Njogu Munguri

2nd Appellant

and

Embu Gaturi Housing Co-op Soc. Ltd

1st Respondent

Attorney General

2nd Respondent

and

Paul Ngari Njogu

Applicant

Ruling

1. The applicant herein has moved this court by way of the Notice of Motion dated the 22nd February 2022 seeking the following orders:-1. Spent2. That the Honourable court be pleased to review and/or set aside the order issued on 1st February, 2022. 3.That the application dated 2nd June, 2021 be reinstated and set down for hearing and determination.4. That the costs of this application be provided for.

2. The application is based on the grounds set at out on the face of it and on the annexed affidavit sworn by Paul Ngari Njogu, the applicant, on even date.

3. The applicant deposes that the 2nd appellant died on the 17th September, 2020 following which the applicant took out limited grant of letters of administration ad litem which was issued on the 15th February, 2021, the sole purpose of which was to prosecute the suit on behalf of the estate. That the applicant then filed the notice of motion dated the 2nd June 2021 seeking to substitute the 2nd appellant.

4. It is his case that when the application came up for hearing on the 12th February, his advocate experienced internet challenges and in his absence in the virtual court, his counterpart from the firm of Muma & Kanjama advocates misled the court by stating that they had not been served with the application which was not the position as the same was filed and stamped in the court registry on the 8th June 2021and a copy left in the court registry.

5. He avers that the estate of the 2nd appellant should not be punished for the faults of the registry staff for failing to properly place the application in the court file. That the matter has already been concluded and execution cannot be done unless the application dated 2nd June, 2022 is reinstated for hearing and determination, and that the respondents will not suffer any prejudice if the same is reinstated.

6. When the application was placed before the court on the 23rd February, 2022 the court made an order for service of the same upon the respondents within seven (7) days after which they were to file their respective responses within 14 days from the date of service. Thereafter, the parties were directed to file written submissions to the application.

7. The court has noted that the respondents did not file any responses or submissions to the application as directed by the court.

8. The court has considered the application together with the supporting and the supplementary affidavits, and the applicant’s submissions. The only issue for determination is whether the court should review and/or set aside it’s orders issued on the 1st February, 2022.

9. The remedy for review is provided for under order 45 (1) of the Civil Procedure Rules and Section 80 of the Civil Procedure Act.Order 45 (1) provides;“Any person considering himself aggrieved –a.by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; orb.by a decree or order from which no appeal is hereby allowed and who from the discovery of new and important matter or evidence which, after the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the decree was passed, or the order made, or on account of some mistake or error apparent on the face of the record, or for any sufficient reason desires to obtain a review of the decree or order, may apply for review of judgment to the court which passed the decree or made the order without unreasonable delay.

10. The applicant averred that on the 1st February, 2022 his counsel did not intentionally absent himself from the virtual court.

11. In the case of Ngugi vs Thiogo (Civil Application 372 of 2018) (2021 KECA 88 (KLR) the court when dealing with an application to reinstate a suit that had been dismissed for non-attendance stated that, all that the applicant in an application of this nature is obligated to demonstrate as basis for granting the relief sought is that he/she was prevented by a sufficient cause from appearing when the application was called for hearing.

12. The court has noted the reason that has been given by counsel for the applicant for his failure to attend the virtual court on the date when the application came up for hearing, which was due to internet problems. The record shows that counsel later appeared and she addressed the court and explained her predicament to court. She avers that the technical problems that befell her on the material day were un-intended, unforeseen and beyond her control.

13. I take judicial notice of the fact that virtual courts have many challenges which are occasioned by internet failure and it would not be fair to denial a party a right to be heard, on account of his/her counsel’s failure to attend the virtual court. I also note that this is a concluded matter and execution cannot issue unless the orders that have been sought in the application dated 2nd June, 2021 are granted.

14. In the premises, I hereby allow the application dated 22nd February 2022 and order that the application dated 2nd June, 2021 be and is hereby reinstated and the same be prosecuted expeditiously within 30 days.

15. It is so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 11TH}} DAY OF MAY,2022. L. NJUGUNAJUDGE....................... for the appellant.....................for the respondent.......................For the applicant