[2022] KEHC 14413 (KLR)

Ouma & another v Agwingi (Miscellaneous Civil Case E006 of 2022) [2022] KEHC 14413 (KLR) (18 October 2022) (Ruling)

Neutral citation: [2022] KEHC 14413 (KLR)

Republic of Kenya

In the High Court at Siaya

Miscellaneous Civil Case E006 of 2022

RE Aburili, J

October 18, 2022

Between

Mourice Ouma

1st Applicant

Christopher Goiya Onginjo

2nd Applicant

and

Julius Hajera Agwingi

Respondent

Ruling

1. By a Notice of Motion dated June 20, 2022, the applicants herein Maurice Ouma and Christopher Goiya Oginjo seek from this court orders for review and or variation or setting aside of the orders made on March 23, 2022 dismissing the application dated March 1, 2022 for want of prosecution on such terms that are just in view of the circumstances of this case; and that costs be provided for.

2. The application which is supported by an affidavit of Maurice Ouma is predicated on the grounds set out on the face of the application. In essence, the application assert and depose that the inability of counsel to log in the online court session was caused by internet interruption at their offices; that mistake and inadvertence of counsel be not visited upon the applicants; and finally that the application has been made timeously and in good faith and in the interest of justice.

3. Opposing the application, the Respondent filed grounds of opposition through counsel on September 8, 2022 contending that: The application in question was dismissed for non-attendance on March 23, 2022 and that the applicants have not demonstrated the reason for the delay in filing of this application hence, the delay is inordinate and inexcusable; that the application is an afterthought and an abuse of the court process, that the application is made in bad faith and is purely a delay tactics and that the application is incompetent, lacks merit and the same ought to be struck out with costs.

4. The application was heard orally yesterday October 17, 2022 with Ms Nabifo holding brief for Mr Odhiambo counsel for the applicants while Ms Ojwang advocate held brief for Mr Ochuka counsel for the Respondents. Both parties’ counsel relied on the pleadings filed on behalf of the clients in urging this court to grant or decline the application for reinstatement.

5. The power to set aside, vary or review its orders is discretionary and such discretion will be exercised having regard to the interests of all parties and especially where no prejudice is demonstrated to be likely to be suffered by either party or the party against whom the application is sought.

6. In this case, the applicants filed their application to file an appeal out of time and served the Respondent’s counsel who appeared and filed grounds of opposition. On the date of hearing which was on March 23, 2022, the applicant’s counsel was absent while the Respondent’s counsel was present.

7. The judgment to be impugned had been delivered in November 2021. The application which was dated March 1, 2022 was therefore not being prosecuted following the absence of counsel to prosecute the same.

8. Although the applicant’s counsel alleged that they were unable to log in the court’s online platform due to internet challenges in their offices, nothing stopped them from informing the court via the platform created for legal practitioners or even calling the advocate for the Respondent and expressing their difficulties. The application was dismissed after 9. 33 am. There was no indication that the applicant’s counsel had attempted to reach the court in vain.

9. Parties are not permitted to file and archive their pleadings in court just to make the other party feel that they have been sued. Litigation is meant to aid parties to resolve their differences if they cannot resolve out of court and not to use it as a weapon to hold the other party with pending suits. I am not satisfied that the applicants herein did all they could within their means to reach the court and failed.

10. In addition, the application was dismissed on March 23, 2022 and it has taken them until June 16, 2022, three months later to file this application to reinstate the dismissed application. That is delay of 3 months. No explanation is given for the delay. Delay defeats equity and where a party is guilty of laches with no explanation for the delay, they do not deserve the discretion of the court.

11. Having so found, what orders should this court make?

12. In Kastun Limited v Nyeri Wholesalers [2014]eKLR, Wilson Cheboi Yego v Samuel Kipsang Cheboi [2019]eKLR and Joseph Kinyua v G.O Ombachi [2019]eKLR, the Court of Appeal set out principles to be taken into account, to guide in an application for reinstatement of an application dismissed for non attendance. These principles are:i.It is more just if litigation is brought to an end after all parties have been heard on merit and substantive justice administered;ii.The very Rules of the court that provide for timelines for the performance of an act under the said Rules are the same Rules of the court that allow the court to exercise its discretion and extend time within which to comply in the event of any non compliance with any of these rules.iii.Article 159 of the Constitution of Kenya, 2010 enjoins the court to administer substantive justice.iv.Section 3A and 3B of the appellate jurisdiction Act through the overriding objective principle mandate the court to act justly and fairly.v.The overriding objective principle is not aimed at giving justice to one party at the expense of another but for ends of justice to be met to all the parties involved or stand to be affected by the matter.vi.In seeking the court’s intervention upon default and or non compliance with a procedural step in litigation before the court, demonstration of existence of a reasonable explanation for the delay in the supporting documents is sufficient basis for the exercise of the court’s discretion in favor of a deserving party;vii.Consideration of the nature of the substratum of the litigation is also of paramount consideration in an application for extension of time within which to comply with the Rules;viii.Article 50 coupled with Article 159 of the Constitution on the right to be heard and the need for a court of law to frown upon procedural technicalities in favor of substantive justice to all parties;ix.In an application for reinstatement of a court process, there is need to balance the requirements as to whether reasonable grounds have been preferred for reinstatement and the prejudice to be suffered by the opposite party if such an order for reinstatement were to issue bearing in mind at the same time that dismissal is a draconian order that drives parties away from the seat of justice and should therefore be employed sparingly.

13. Having considered the above principles which were also applied in Civ Appeal No 372/2018 inNjugi v Thogo [2021]eKLR (KECA), I find that despite the unexplained delay, the applicants should not be driven out of the judgment seat to articulate or ventilate their grievances on merit for this court to determine whether or not they are deserving of leave of court to appeal against the impugned judgment in Siaya SPM CC 35/2018. Further, I do not find that the grant of the orders sought shall prejudice the Respondent who can adequately be compensated by an award of costs.

14. For the above reasons, I hereby grant the prayers sought in the following terms:1. The application dated June 20, 2022 be and is hereby allowed. The orders made by this court on March 23, 2022 dismissing the applicant’s application dated March 1, 2022 be and are hereby set aside and vacated.

2. The application dated March 1, 2022 be and is hereby reinstated for hearing orally and interpartes on October 25, 2022.

3. The applicants to pay costs of this application to the Respondent, assessed at Kshs 15,000/- within 14 days of today in default, execution to issue.

16. I so order

Dated, signed and delivered at Siaya this 18thDay of October, 2022R.E. ABURILIJUDGEPage 2 of 2