[2023] KEHC 26266 (KLR)

Said & 10 others v Kenya National Chamber of Commerce and Industry(KNNCI) Dispute Resolution Committee; Kamama & 3 others (Interested Parties) (Judicial Review E007 of 2023) [2023] KEHC 26266 (KLR) (6 December 2023) (Ruling)

Neutral citation: [2023] KEHC 26266 (KLR)

Republic of Kenya

In the High Court at Nakuru

Judicial Review E007 of 2023

HM Nyaga, J

December 6, 2023

IN THE MATTER OF AN APPLICATION FOR LEAVE TO APPLY FOR JUDICIAL REVIEW ORDER OF CERTIORARI AND PROHIBITION AND IN THE MATTER OF SECTIONS 8 AND 9 OF THE LAW REPORM ACT, CAP 26 AND ORDER 53 OF THE CIVIL PROCEDURE RULES 2010 AND IN THE MATTER OF THE KENYA NATIONAL CHAMBER OF COMMERCE AND INDUSTRY (KNCCI) DISPUTE RESOLUTION NO.7 OF 2023 MADE ON 5 TH JUNE 2023

Between

Ali Said

1st Applicant

Ruth Muthoni Ndung’u

2nd Applicant

Lucas Ngige

3rd Applicant

Joseph Kanyiri Kuria

4th Applicant

Joseph Kamau Kariuki

5th Applicant

Judy Njenga

6th Applicant

Ramesh Chandaria Khagram

7th Applicant

Alice Nyambura Ndun’gu

8th Applicant

John Kimemia Gitau

9th Applicant

Linda Kageha Mugatsia

10th Applicant

Mercy Nyanchama

11th Applicant

and

The Kenya National Chamber of Commerce And Industry(KNNCI) Dispute Resolution Committee

Respondent

and

John Kamama

Interested Party

Esther Nyokabi

Interested Party

The Membership and Resouirce Mobilisation Committee

Interested Party

Independent Election Board

Interested Party

Ruling

1. The Applicants filed the instant application dated 24th August,2023 brought under Rule 3 of the High Court (Practice and procedure) Rules, the Judicature Act Sections 1A,1B and 3A of the Civil Procedure Act, Order 10 Rule 11 & Order 12, Rule 7 of the Civil Procedure Rules 2010, Articles 48,50 and 159 of the Constitution of Kenya 2010. The Application seeks the following orders: -i.Spentii.Spentiii.That pending the hearing and determination of this Application, this Honourable Court be pleased to set aside and or vacate the orders issued on the 19th June,2023 and any consequential orders thereof.iv.That pending the hearing and determination of this Application, this Honourable Court be pleased to reinstate the orders issued on 8th June,2023. v.That this Honourable Court be pleased to reinstate and or reopen this suit and admit the same for full hearing and determination of the issues in contention.vi.That Costs of this Application be provided for.

2. The Application is premised on grounds on its face and supported by an affidavit of the 1st Applicant, Ali Said, sworn on his own behalf and on behalf of his co-applicants on the even date.

3. In a nutshell, it is the Applicant’s case that they commenced the suit herein via chamber summons dated 6th June,2023 primarily to challenge the decision by the Respondents to nullify their elections to serve as Directors of the KNCCI, Nakuru Branch on the ground that they were not afforded an opportunity to be heard and that the Respondent had no jurisdiction to do so as such mandate was only bestowed upon the 4th Respondent.

4. They aver that they were granted interim orders on 8th June 2023 however on 19th June,2023, the counsel on record misguided this court by insinuating that parties had entered into an out of court settlement prompting this court to mark this suit as settled and withdrawn, and consequently discharged the interim orders which were in force at that time and marked the matter as closed.

5. They aver that on 21st August,2023 they learnt of the above position and upon interrogating their erstwhile advocate he was unable to disclose where he derived such instructions from and thereafter evaded their calls.

6. They dispute ever attempting an out of court settlement and stated that the action of the said counsel was unprofessional and unethical, and have caused the Nakuru Chapter Elected Board of Directors great prejudice and atrocity.

7. It is their further contention that the orders granted on 19th June,2023 have caused paralysis in the operation of Nakuru Chapter and urged the court not to visit the mistake or ignorance of the counsel upon them.

8. They depose that this court has unfettered discretion to set aside, vacate orders that were issued on 19th June,2023 and reinstate and re-open this instant suit in the wider interests of justice.

9. In opposition to the Application, the 2nd interested party on her own behalf and on behalf of the 1st Interested party swore a replying affidavit on 4th October,2023.

10. She depones that order 4 of this court order issued on 8th June,2023 directed the Applicants to file substantive application and serve on all the parties by close of business on 9th June,2023 but the interested parties were not served with the substantive application as per the court order.

11. She avers that upon failure to comply with the said orders, the leave granted to the Applicant lapsed and there were no orders as of 19th June,2023 capable of execution by the Applicant.

12. She avers that the applicants cannot blame the court and other parties for their advocate’s act of marking this matter as settled on 19th June,2023.

13. She deposes that whether the matter was withdrawn or marked settled on that day is neither here nor there as long as the Applicants failed to comply with the orders issued on 8th June,2023 and no explanation has been given so far, the entire application stood as spent as at 19th June,2023.

14. She states that the present application lacks merit and same should be dismissed with costs.

15. The respondent and the 3rd and 4th interested parties did not participate in this matter.

16. The Application was urged through written submissions.

17. Only the 1st and 2nd interested parties’ submissions are on record.

Interested Party Submissions 18. Regarding prayers 3 and 4, the interested parties submitted that the same are spent for the reasons that from their wording the applicants sought to have those orders granted in the interim however when the matter was placed before court no orders were granted in the interim.

19. Regarding prayer no. 5, the interested parties referred this court to the orders issued on 8th June,2023 and submitted that in view of failure to file a substantive application as was directed by the court, there is no substantive motion before court that can be reinstated for hearing and determination and even if one was filed, then the same was not as per the orders of this court issued on 8th June,2023.

20. In buttressing their submissions, the interested parties relied on the provisions of Order 53 Rule 3(1) of the Civil Procedure Rules, Order 50 Rule 6 of the Civil Procedure Rules and the case of Republic vs District Education Board Sub county Health Officer, Nyeri South District Ex Parte Bridge International Academies Limited [2016] eKLR.

21. The interested parties then submitted that no notice of motion was filed and served upon the parties herein and therefore the court should strike out the instant motion with costs to them.

Analysis & Determination 22. From the framing and/or wording of prayers no. 3 and 4 of the Application as rightly submitted by the Interested parties, the Applicant intended the orders to be granted in the interim. I did not grant the same when the application was placed before me and such the said orders are spent.

23. Having said that, I am of the considered view that the sole issue for determination is whether the suit herein should be reinstated and/or reopened for full hearing.

24. Reinstatement of a suit is anchored in the realm of judicial discretion of the court, which discretion ought to be exercised in a just manner, as was held in Bilha Ngonyo Isaac vs. Kembu Farm Ltd & Another [2018] eKLR ((J.N. Mulwa J), which echoed the decision of the court in Shah vs. Mbogo & Another (1967) EA 116 (Harris J), where the court stated on the matter of discretion:“The discretion is intended so as to be exercised to avoid injustice or hardship resulting from inadvertence or excusable mistake or error but is not designed to assist a person who has deliberatively sought whether by evasion or otherwise to obstruct or delay the course of justice.”

25. I also find the case of Esther Wamaitha vs Safaricom relevant in determining the issue at hand. Therein the court held as follows:-“…The discretion is free and the main concern of the courts is to do justice to the parties before it (See Patel Versus EA Cargo Handling Services Ltd) the discretion 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 deliberately sought, whether by evasion or otherwise, to obstruct or delay the cause of justice (See shah Versus Mbogo) ….”

26. Jerold Taitz, in his book, The Inherent Jurisdiction of the Supreme Court Jerold Taitz, University of Cape Town, Juta, 1985 succinctly describes the inherent jurisdiction of the high court as follows: -“. . .This latter jurisdiction should be seen as those (unwritten) powers, ancillary to its common law and statutory powers, without which the court would be unable to act in accordance with justice and good reason. The inherent powers of the court are quite separate and distinct from its common law and its statutory powers, eg in the exercise of its inherent jurisdiction the Court may regulate its own procedure independently of the Rules of Court.”

27. I.H. Jacob in "The Inherent Jurisdiction of the Court (1970) 23 Current Legal Problems 23 at pp. 51-52. quoted by Jerold Taitz (supra) states:“exists as a separate and independent basis of jurisdiction, apart from statute or Rules of Court ... It stands upon its own foundation, and the basis for its exercise is ... to prevent oppression or injustice in the process of litigation and to enable the court to control and regulate its own proceedings ... [it] is a necessary part of the armoury of the courts to enable them to administer justice according to law. The inherent jurisdiction of the court is a virile and viable doctrine which in the very nature of things is bound to be claimed by the superior courts of law as an indispensable adjunct to all their other powers ... it operates as a valuable weapon in the hands of the court to prevent any clogging or obstruction of the stream of justice."

28. In the instant case the applicants contended that their erstwhile advocate misled the court that that they had settled the matter out of court prompting this court to withdraw the matter and mark the same as settled, and proceeded to discharge the interim orders and close the file.

29. They deposed that upon learning of the above orders they interrogated their advocate and he was unable to disclose where he derived such instructions from and thereafter he evaded their calls.

30. They maintained that they are keen on prosecuting this matter to its logical conclusion.

31. The general rule is that actions taken by counsel on behalf of a client is binding on the client. This was the decision in Kinuthia Maina vs Coffee Board of Kenya, KCB Limited -vs Specialised Engineering. This positon is provided for under Order 9, Rule 1 of the Civil Procedure Rules which provides that –“Order 9, Rule 1Applications, appearances or acts in person, recognized agent or by advocate.1. Any application to or appearance or act in any court required or authorized by the law to be made or done by a party in such court may, except where otherwise expressly provided by any law for the by time being in force, be made or done by the party in person, or by his recognized agent, or by an advocate duly appointed to act on his behalf:Provided that—(a)any such appearance shall, if the court so directs, be made by the party in person; and(b)where the party by whom the application, appearance or act is required or authorized to be made or done is the Attorney- General or an officer authorized by law to make or to do such application, appearance or act for and on behalf of the Government, the Attorney-General or such officer, as the case may be, may by writing under his hand depute an officer in the public service to make or to do any such application, appearance or act.”

32. However, there are exceptions to this rule. In the case of Westward Properties Limited vs Chezer Investments Limited [2016] eKLR the court stated that the orders of withdrawal of suit may be set aside for fraud, misrepresentation, collusion or mistake.

33. I have considered the proceedings of 19th June,2023. The advocate who held brief for the Applicants’ erstwhile advocate told court that the parties had entered into an out of court settlement which position was not objected to by the Advocate for the interested parties. I thereafter marked the matter as settled and withdrawn, and proceeded to discharge the orders and closed the file.

34. I do note that the Applicants have not presented any evidence of fraud, misrepresentation or mistake on the part of their erstwhile advocate. They have also deposed that the actions of their then advocate have caused paralysis in the operations of the Nakuru Chapter but no evidence was adduced to demonstrate this position.

35. In John Nahashon Mwangi vs Kenya Finance Bank Limited (in Liquidation) [2015 eKLR, the court held the tests to apply in an application to reinstate a suit are whether there are reasonable grounds to reinstate, considering the prejudice that the defendant would suffer if reinstatement of the suit was made against the prejudice the plaintiff would suffer if the suit is not reinstated.

36. Articles 48 and 50 of the Constitution guarantees every Kenya right to access to justice and fair hearing. Article 159 requires that justice shall be administered without undue regard to technicalities whereas Section 1A, 1B and 3A of the Civil Procedure Act expects the court to strive towards substantive justice.

37. In deciding whether to grant the prayers to reinstate the suit, the crucial question that needs to be answered is whether there is a competent suit on record capable of being reinstated.

38. The interested parties submitted that the application dated 6th June,2023 was spent by the orders I issued on 8th June,2023.

39. For clarity purposes, I deem it fit to restate verbatim the directions I issued on 8th June,2023. They were as follows: -“I have perused the Application dated 6th June,2023, filed under certificate of urgency.The said application raises questions of jurisdiction of the respondent to nullify the elections of the applicants to the office at the KNCCI, Nakuru Branch. It is also alleged that the 3rd to 11th Applicants, who were affected by the decision of the Respondent made on 5th June,2023, were not given an opportunity to be heard. I hereby give the following directions;1. The application is certified urgent.2. Leave is granted to the applicants to file an application for Judicial Review of the Respondent, made on 5th June,2023. 3.That the grant of leave shall operate as a stay of the decision of the Respondent dated 5th June,2023. 4.The Substantive application be filed and served on all the parties by C.O.B on 9th June,2023 and to be heard on 19th June,2023. 5.The national office, KNNCI be served with the pleadings herein and are at liberty to file a response.”

40. It is clear therefore that the above directions dispensed with the Application dated 6th June, 2023. Thereafter, the applicants ought, as directed, to have filed a substantive application on or before the 9th June,2023. They did not do so. No reasons for failure to file that application has been proffered herein and the applicants besides seeking reinstatement of the suit, they have not made any prayer for enlargement of time within which to file the substantive application for judicial review.

41. As such I agree with the interested parties that there is no substantive motion on record for hearing and determination on merit.

42. It is trite law that Court orders are not made in vain. An application for reinstatement invokes the equitable jurisdiction of the court and so its grant must be made on principles represented by the maxim that equity would not grant its remedy if such order will be in vain. On the basis of this maxim, courts have held and again that it cannot benumb itself by making orders which cannot be enforced or grant an order which will be ineffective for practical purposes. Doing so would lead to farcical situation. (See Eric vs J Makokha & 4 Others vs Lawrence Sagini & 2 Others Civil Application No. Nai 20 of 1994. )

43. In Republic vs District Education Board Subcounty Health Officer, Nyeri South District Ex Parte Bridge International Academies Limited(supra) the court stated as follows: -“When there is a clear prescription in the rules of the time to do a particular thing, that thing must be done within that time. Such a prescription of time is neither in vain nor is it for cosmetic purposes; it must be adhered to. I reckon it is for this reason that the rules themselves provide for applications for extension of time if for one reason or another, a party could not take a particular action or proceedings within the prescribed time; in particular Order 50 Rule 6 of the Civil Procedure Rules states that:Where a limited time has been fixed for doing any act or taking any proceedings under these Rules, or by summary notice or by order of the court, the court shall have power to enlarge such time upon such terms (if any) as the justice of the case may require, and such enlargement may be ordered although the application for the same is not made until after the expiration of the time appointed or allowed:Provided that the costs of any application to extend such time and of any order made thereon shall be borne by the parties making such application, unless the court orders otherwise.There no evidence on record that the ex parte applicant ever made such an application for enlargement of time when he was caught out by the time prescribed by the court or the rules. It follows that the substantive motion for judicial review orders was filed in violation of the court order of 22nd January, 2014 and order 53 rule 3(1) of the Civil Procedure Rules. Both the court order and the rules are couched in mandatory terms implying that this court does not even have the discretion to entertain the motion filed in breach of its order and the prescribed rules.It follows therefore that there is no competent application before this court for its determination. For this reason, I agree with the counsel for the respondents that the applicant’s motion dated 18th February, 2014 is incompetent. Accordingly, I hereby strike it out with costs to the respondents”

44. In view of the foregoing, I find that the application is misplaced since there was no substantive motion filed as directed by the court.

45. Consequently, I proceed dismiss the application dated 24th August 2023 with costs to the interested parties.

46. Orders accordingly.

DATED, SIGNED AND DELIVERED AT NAKURU THIS 6THDAY OF DECEMBER, 2023. H. M. NYAGA,JUDGE.In the presence of;C/A KipsugutMiss Kamau for ApplicantN/A for Respondent