[2022] KEHC 637 (KLR)

Rosemary Wambui Kiboi (DCD) & 2 others v General & 2 others (Civil Suit 145 of 1997) [2022] KEHC 637 (KLR) (2 June 2022) (Ruling)

Neutral citation: [2022] KEHC 637 (KLR)

Republic of Kenya

In the High Court at Nyeri

Civil Suit 145 of 1997

FN Muchemi, J

June 2, 2022

Between

Rosemary Wambui Kiboi (Dcd)

1st Applicant

Catherine Wanjiru Kibo

2nd Applicant

Theresa Murugi Kiboi

3rd Applicant

and

Attorney General

1st Respondent

Ephantus Mwaniki Thuo

2nd Respondent

Charles Gachoki Thuo

3rd Respondent

Ruling

1. The application for determination dated August 6, 2021 brought under Order 24 Rule 2 and Order 51 of the Civil Procedure Rules, sections 1A, 1B and 3A of the Civil Procedure Act and article 159 (2) (a) of the Constitution seeks for orders of setting aside the orders made on March 26, 2007 dismissing the suit under Order XVI Rule 6 of the then cited Civil Procedure Rules and to reinstate the suit for hearing and determination on merit.

2. In opposition to the application, the 1st respondent has filed grounds of opposition dated October 22, 2021.

The Applicants’ Case 3. The applicants’ relied on the grounds that the suit was commenced vide a plaint dated March 16, 1995 on behalf of their family being the dependents of the estate of Francis Kiboi Gitahi (Deceased) and that subsequently the 1st plaintiff, their mother, passed away on or about December 1998 leaving the applicants as orphans. The applicants contend that they could barely fend for themselves as they were young and still in school and they were assured by their uncle that he was following up on the case. The applicants came to find out that the suit was dismissed suo moto by the court on 26th March 2007 for want of prosecution.

4. The applicants state that their advocates on record filed a notice to cease acting on 6th August 2003 but they were never served with the notice nor were they served with any Notice to Show Cause why the suit should not be dismissed for want of prosecution.

5. The applicants argue that though the delay is inordinate it is not inexcusable as they were naïve in trusting their family members in following up the cases and further that they were young and fending for themselves since 1998. They further state that pursuant to article 159 of the Constitution and the overriding objectives, the court should not turn them away without an opportunity to be heard. In any event, the applicants state that no prejudice shall be suffered by the defendants as they can be compensated by way of throw away costs. The applicants further state that they have complied with Order 11 of the Civil Procedure Rules and they are willing to abide by any conditions the court may impose in reinstating the suit. As such, they pray that the court sets aside the orders made on March 26, 2007 and reinstate the suit for hearing and determination.

The 1st Respondent’s Case 6. The 1st respondent states that the demise of the 1st plaintiff in December 1998 did not discontinue the suit as the applicants were represented by counsel until August 2003 with capacity to receive instructions from the applicants on prosecution of the matter or explore other options pursuant to Order 9 of the Civil Procedure Rules 2010.

7. The 1st respondent further states that it will be highly prejudiced in the event the suit is reinstated since the extended delay in prosecuting the case has resulted to loss of documentary evidence and oral witnesses for a cause of action that arose in March 1992 which is a period of about 30 years ago. As such, the 1st respondent contends that the applicants are guilty of laches, indolence and failure to exercise due diligence which is inexcusable conduct that should not be entertained by the court.

8. Furthermore, the 1st respondent states that the applicants have failed to disclose any justifiable reason for the inordinate delay in filing the present application in August 2021 following the dismissal order of March 2007. The 1st respondent states that the application is an afterthought, lacks merit and amounts to a complete abuse of the court process. As such, the 1st respondent prays that the application be dismissed with costs.

9. Parties canvassed the application by way of written submissions. A summary of the applicants’ submissions is as follows:-

The Applicants’ Submissions 10. The applicants reiterate what they deponed in their application and rely on the cases of Ngwambu Ivita v Akton Mutua Kyumbu [1984] KLR 441, CMC Holdings Limited vs Nzioki [2004] 1 KLR 173 and Mwangi S. Kimenyi v Attorney General & another (2004) eKLR and submit that although the delay is prolonged it is not inexcusable as they were orphans fending for themselves and relying on third parties who abandoned the suit without giving them any notice. As such, the applicants submit that justice can still be done despite the delay.

11. The applicants submit that it is the duty of the respondents to show that they will suffer prejudice by showing that justice will not be done in the case due to the prolonged delay on the part of the plaintiff. To support their contention they rely on the cases of Mwangi S Kimenyi v Attorney General & another(2004) eKLR and Joshua Chelelgo Kulei v Republic & 9 others [2014] eKLR. The applicants submit that the respondents have not shown any proof that the required documentation has been destroyed and the witnesses already testified in Inquest No. 49 of 1992 Thika which concluded that the driver of GK S 269 was at fault and these results have never been challenged by the respondents. The applicants further rely on Section 34 of the Evidence Act and submit that the proceedings and conclusions in the inquest and the civil proceedings in Nyeri High Court Civil Case No. 1321 of 1993 are admissible in the proceedings in this case and thus the reinstatement of the suit will not prejudice the respondents. The applicants further submit that liability of the parties has already been judicially established and such the applicant should not be condemned unheard.

12. The applicants rely on the cases of Abigael Barma v Mwangi Theuri ELC No 393 of 2013 and Court of Appeal Case No. 16 of 2012 Nairobi (Civil Application) and submit that their inaction is not out of indolence or sloth as they trusted their family members who failed them. Further, the applicants contend that since liability has already been established in the inquest and civil proceedings in Nyeri High Court Civil Case No. 1321 of 1993 it is possible to do justice to the parties.

13. The applicants further rely on the cases of John Nahashon Mwangi v Kenya Finance Bank Limited (in Liquidation) [2015] eKLR and Barnabas Maritim v Manywele Korgoren & another [2016] eKLR and submit that the court should sparingly dismiss suits for want of prosecution and that a court in considering to reinstate a suit which has been dismissed should consider whether there are reasonable grounds to reinstate the suit after considering the prejudice the defendant would suffer if the suit was reinstated against the prejudice the plaintiff will suffer if the suit is not reinstated. As such, the applicants pray that their application be allowed as prayed.

Issue for determination 14. The main issue for determination is whether the orders of March 26, 2007 should be set aside and the suit be reinstated.

The LawWhether the orders of March 26, 2007 should be set aside and the suit be reinstated. 15. The law on setting aside ex-parte orders is found under Order 12 Rule 7 of the Civil Procedure Ruleswhich provide:-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.

16. Further section 3A of the Civil Procedure Act provides for the inherent powers of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the court process. It 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.

17. In that regard, the court has discretion to set aside a judgment or order. The exercise of this discretion is intended to avoid injustice or hardship resulting from an accident, inadvertence or excusable mistake or error but not to assist a person who deliberately seeks to obstruct or delay the course of justice. InShah v Mbogo & another (1967) EA 116, it was held:-The discretion to set aside an ex parte judgment is intended to be exercised to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake or error but it is not designed to assist a person who has deliberately sought whether by evasion or otherwise to obstruct or delay the cause of justice.

18. Similarly in the persuasive cases of John Kabira Kioni vs George Namasaka Sichangi t/a Sichangi & Co Advocates[2019] eKLR and Franklin J B Chabari v Tharaka Nithi County Government & another[2019] eKLR the factors to consider in setting aside an ex parte judgment or order were outlined as follows:-The motion seeking the setting aside of the order dismissing the suit was made timeously meaning there was no delay. In the case of Mbogo & another v Shah [1968] EA 93 and Pithon Waweru Maina vs Thuku Mugiria[1983] KLR 78, the law on setting aside of ex parte judgment or order was considered in great detail. The principles governing the exercise of the judicial discretion to set aside an ex parte judgment obtained in default of either party to attend the hearing are:a.Firstly, there are no limits or restrictions on the judge’s discretion except that it should be based on such terms as may be just because the main concern of the court is to do justice to the parties;b.Secondly, this discretion is intended so to be exercised to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake or error, but is not designed to assist the person who has deliberately sought, whether by evasion or otherwise, to obstruct or delay the course of justice;c.A discretionary power should be exercised judicially and not arbitrarily or idiosyncratically.

19. The applicants herein seek for orders for setting aside the orders made in this court on March 26, 2007 dismissing the suit for want of prosecution. The reasons for delay advanced by the applicants are that they were orphans and left to fend for themselves and that they relied on their family members to follow up on the case. I have perused the record and noted that the suit was commenced vide a plaint dated 16th March 1995 seeking for damages for pain and suffering, loss of expectation of life and loss of expected future earnings. The matter arose from a road traffic accident in which the deceased was a fare paying passenger in motor vehicle registration number KYT 217 owned by the 2nd defendant and driven by the 3rd defendant which vehicle collided with motor vehicle registration number GK S 269 owned by the Government of Kenya. Notably, since the inception of the suit, the applicants were represented by the firm of H. P. G. Waweru & Company Advocates. The said firm filed their Notice of Withdrawal on 10th September 2003. On the said notice, I note that the same was drawn to be served upon the respondents, but there was no indication that service be effected on the applicants. On March 26, 2007, the court on its own motion dismissed the suit pursuant to Order XVI Rule 6 of the then Civil Procedure Rules on the basis that no step had been taken by any party for a period of six years.

20. The applicants contend that the 1st plaintiff who is their mother died in 1998 and since then they were young and had to fend for themselves. I do note from the court record that during that period from 1998 to 2003, counsel on record was still acting for the applicants and he fixed the matter for hearing and filed Agreed Statement of Issues. It is only in 2003 that counsel withdrew from acting for the applicants may be the reason of lack of instructions. The matter was dismissed in 2007 and the parties allege that they were neither served with the notice to show cause nor with the dismissal order. Although the parties’ state that they learnt from the registry upon following up that the matter was dismissed, they have not told the court exactly when they visited the registry to discover that the matter was dismissed. Furthermore, they have not explained the reasons for the delay from 2007 in filing the present application for reinstatement of the suit. Moreover, it will be prejudicial for the respondents if the case is reinstated as the cause of action occurred about 30 years ago which may render it difficult to trace the witnesses or the documentation. I note that the applicants rely on section 34 of the Evidence Act and submit that the court ought to find liability as against the 1st respondent because an inquest was carried out in Thika Inquest No 49 of 1992 and there is judgment entered against the 1st respondent in Nyeri High Court Civil Case No 1321 of 1993. However, it is trite law that in civil proceedings, he who alleges must prove. A court of law will not make a finding on liability following inquest proceedings or a judgment in a similar civil case until the parties in this case prove their case. Furthermore, the role of a court in inquest proceedings was discussed in the persuasive case of Absalom Giteru Kibe vs Republic[2014] eKLR where the court held:-It is clear from this decision that in an inquest, the magistrate has the obligation to weigh the evidence of both the prosecution and the accused and his witnesses; he cannot look at the evidence of the prosecution only and commit the accused to trial; neither can he look at the evidence of the accused only and discharge him. The magistrate can only come to a particular conclusion only after he has weighed the evidence of both sides but conscious of the act his is not the trial court.

21. I have also noted that the applicants have averred that they were not served with a notice to show cause before the suit was dismissed. The court on its own motion dismissed the suit under Order XVI Rule 6 of the Civil Procedure Rules which provides:-In any case not otherwise provided for in which no application is made or step taken for a period of three years by either party with a view to proceeding with the suit, the court may order the suit to be dismissed; and in such case the plaintiff may, subject to the law of limitation, bring a fresh suit.

22. In the instant suit, no step had been taken by either party for a period of six years, thus the court was within its purview under Order XVI Rule 6 of the Civil Procedure Rules to dismiss the suit.

23. The applicants state that they were very young at the time their mother the 1st plaintiff died. But they do not disclose how old they were at the time of their mother’s death. I am not convinced that the applicant were as young or incapable of following the case as they want the court to believe, after all, when the suit was filed in 1997, the applicants were of the age of majority. If they were minors, it would have been indicated in the plaint and their mother the 1st plaintiff would have been suing on their behalf.

24. It is not denied that there was a counsel on record who withdrew from acting for the applicants for lack of instructions. This confirms that the applicants slept on their rights and failed to pursue their case. It is beyond any justification for a case to be abandoned for six (6) years without any of the applicants following up. It was dismissed in 2003 but his application was filed seven (7) years later. The delay in filing this application has not been explained. The applicants cannot blame their unnamed relatives for not following up the case. It was their duty to follow up the case with their advocate and the curt. Despite the death of the 1st plaintiff, this case remained alive and should have been prosecuted by the applicants being the surviving plaintiffs. Instead, the applicants lost interest, became indolent and are surely guilty of laches. It would defeat the purpose of the overriding objective in expeditious disposal of cases to allow the reinstatement of this case.

25. It is my finding that the applicants have failed to satisfy the court that it should exercise its discretion in their favour.

26. I find no merit in this application and dismiss it with costs.

27. It is hereby so ordered.

DELIVERED, DATED AND SIGNED AT NYERI THIS 2ND DAY OF JUNE, 2022. F. MUCHEMIJUDGERuling delivered through videolink this 2nd day of June, 2022