[2022] KEHC 17005 (KLR)

Shimwenyi v Carolyne & 2 others (Civil Appeal 75 of 2019) [2022] KEHC 17005 (KLR) (13 December 2022) (Judgment)

Neutral citation: [2022] KEHC 17005 (KLR)

Republic of Kenya

In the High Court at Naivasha

Civil Appeal 75 of 2019

GWN Macharia, J

December 13, 2022

Between

Nathan Muhangani Shimwenyi

Appellant

and

Opiyo Carolyne

1st Respondent

Marble Musimbi

2nd Respondent

Monsanto Kenya Limited

3rd Respondent

(Being an appeal from the ruling in the Chief Magistrate’s Court at Naivasha CMCC No.344 of 2013 delivered by Hon. E. Kimilu, PM on the 3rd December, 2019)

Judgment

The Appeal 1. The appeal herein arises from the dissatisfaction by the appellant with a ruling dismissing an application in which he sought reinstatement of the suit in the trial court. The suit had been dismissed for want of attendance. The appellant filed his memorandum of appeal on the December 13, 2019 which was based on the following grounds:1. That the learned trial magistrate erred in law and in fact in failing to take cognizance of the fact that the appellant’s case was premised on the same cause of action as in Naivasha CMCC No 342 of 2013 which had been marked as the test suit in a related series and that the issue(s) for determination were precisely similar and failed to pronounce herself on the issue but rather dismissed the appellant’s application which decision was manifestly unjust.2. That the learned trial magistrate erred in law and in fact by failing to uphold the principles of substantive justice that every suit shall be heard and determined on merits hence dismissing the appellant’s application.3. That the learned trial magistrate erred in law and in fact by failing to distinguish between a mistake on the part of counsel for the appellant that resulted in the dismissal of the appellant’s suit and subsequent to make this distinction allowed the said mistakes to be visited upon the appellant.4. That the learned magistrate erred in law and in fact by failing to properly reinstate the appellant’s suit and order the same be heard on merit hence driving the appellant away from the seat of justice on grounds of technicalities contrary to the principles of substantive justice.5. That the learned magistrate erred in law in failing to properly exercise judicial authority in accordance with the constitutional provisions and particularly article 159 and 50 of the Constitution of Kenya, 2010 occasioning miscarriage of justice to the appellant.6. That the learned magistrate erred in law and fact by failing to judiciously analyse the appellant’s evidence, submissions as well as authorities hence arriving at a finding that was wholly erroneous, manifestly unjust and an abuse of discretional power.

2. The appellant sought that the ruling and orders sequential to the same be set aside, the application to reinstate the suit be allowed and the costs of the appeal be awarded to the appellant.

3. The appeal was canvassed by way of written submissions.

Background 4. The appellant filed a notice of motion dated the August 8, 2019 for orders, inter alia, that the suit be reinstated following its dismissal for non-attendance. It was the appellant’s claim in the said application that the suit was part of a series in Naivasha CMCC Nos 344,345,344, and 342 all of 2013 with the latter being marked as the test suit. The said matters were stayed pending the hearing and determination of the test suit and judgment delivered on the December 4, 2018.

5. There had been a previous dismissal which was set aside and the suit was reinstated on the January 19, 2016.

6. It was upon the delivery of the judgment in the test suit that the appellant through his advocates on record sought to have a date for the instant suit. The appellant’s advocate averred in the affidavit in support of the application that the files could not be traced for sometime and a date was fixed for the July 30, 2019 only to learn that the matter had been dismissed again, during the pendency of the test suit.

7. The other remaining causes had been inadvertently fixed for mention on diverse dates which prompted the appellant’s advocate to write to the executive officer to take them out of the respective cause lists. The letter was dated the August 23, 2018 and received in court on August 24, 2018. The matters concerned as per the said letter were to come up before the trial court for hearing on the following dates: CMCC No 342 of 2013 on the October 15, 2018

CMCC No 343 of 2013 on the October 15, 2018

CMCC No 344 of 2013 on the October 9, 2018

CMCC No 345 of 2013 on the October 1, 2018

8. The appellant’s advocate admits to not attending court on the aforementioned dates for the matters with the expectation that the letter would have been brought to the attention of the trial magistrate. The non-attendance of the said counsel was averred to have been inadvertent, that the client who sustained injuries from the said accident ought not to be denied an opportunity to vent his cases.

9. The said application was opposed by the counsel for the 3rd respondent who sought its dismissal. He averred that the suit had since been dismissed twice for non-attendance. He further enlightened that on both occasions when the suit was listed for hearing and dismissed, the dates were served by the appellant’s counsel on record.

10. It was further the position of the 3rd respondent’s counsel that no reason had been advanced by the appellant and his counsel why they did not attend court on the two occasions when the case was dismissed for non-attendance. Counsel intimated that the appellant in the said application had failed to meet the requirements for review of the order dismissing the suit and had approached court with unclean hands.

11. Parties filed submissions in support of their positions and the trial court proceeded to deliver the contested ruling in which it dismissed the appellant’s application. In the said ruling, the learned trial magistrate acknowledged that indeed there had been undue delay in prosecuting the matter and the application was brought almost a year after the dismissal of the matter.

12. In establishing whether the appellant had not met the threshold to warrant the exercise of discretion to reinstate the suit, the learned magistrate made reference to the case of Philip Keipto Chemwolo & another v Augustine Kubende [1986] eKLR where the court adopted the principles in the case of Evans v Bartlam, [1937] AC 473 that:“The discretion is in terms unconditional. The courts, however, have laid down for themselves rules to guide them in the normal exercise of their discretion. One is that where the judgment was obtained regularly there must be an affidavit of merits, meaning that the applicant must produce to the Court evidence that he has a prima facie defence. It was suggested in argument that there is another rule that the applicant must satisfy the court that there is a reasonable explanation why judgment was allowed to go by default, such as mistake, accident, fraud or the like. I do not think that any such rule exists, though obviously the reason, if any, for allowing judgment and thereafter applying to set it aside is one of the matters to which the court will have regard in exercising its discretion. If there were a rigid rule that no one could have a default judgment set aside who knew at the time and intended that there should be a judgment signed, the two rules would be deprived of most of their efficacy. The principle obviously is that unless and until the court has pronounced a judgment upon the merits or by consent, it is to have the power to revoke the expression of its coercive power where that has only been obtained by a failure to follow any of the rules of procedure.”

13. The learned trial magistrate also relied the case of Utalii Transport Company Limited & 3 others v Nic Bank Limited & another [2014]eKLR. She found that the appellant was indolent in taking hearing dates and not attending to the same. She went ahead to note that the letter by the appellant’s advocate to the court which was not on record ought to have also been brought to the attention of the 3rd respondent’s counsel.

Appellant’s Submissions 14. The appellant filed submissions on the February 10, 2022 through its counsel on record. He argued that when he moved the trial court, it was with a view that it would exercise its discretionary powers and set aside the orders of dismissal of his suit. Reliance was placed on the case of Patel v EA Cargo Handling Services Limited(1974) EA. 75, in which the Court of Appeal held as follows:“There are no limits or restrictions on the judge’s discretion except that if he does vary the judgment, he does so on such terms as may be just. The main concern of the court is to do justice to the parties and the court will not impose condition on itself or fetter wide discretion given to it by the rules the principle obviously is that unless and until the count has pronounced judgment upon merits or by consent, it is to have power to revoke the expression of its coercive power where that has obtained only by a failure to follow any rule of procedure.”

15. It was submitted that the mistakes of counsel ought not to be visited on a client. The non-attendance of the counsel on record was inadvertent based on the letter shared with the court and as such, the same should not be visited on the innocent litigant. The appellant referred the court to the case of Gideon Mose Onchwati v Kenya Oil Co Ltd & another [2015] eKLR in this regard.

16. The appellant submitted that the learned magistrate ought to have allowed the appellant’s case to be heard and determined on merit having explained the reasons for the delay as well as non-attendance. He relied on the case of D. Syrup Distributors Limited v Loki Developers [2017] eKLR thus:“A party should always take steps to progress his case to a logical conclusion. Where a plaintiff commits acts of inordinate delay, he occasions justice to the defendant but as I have stated earlier, dismissal of a case is a draconian judicial act and should be done sparingly and in cases where dismissal is the feasible and just thing to do. Courts should strive to sustain rather than dismiss suits especially where justice would still be done and fair trial had, despite the delay. The respondent herein has not shown any prejudice that it is likely to suffer if the appeal is reinstated.”

17. The appellant additionally relied on the case of Kivanga Estates Limited v National Bank of Kenya [2014] eKLR and urged that the appeal be allowed by setting aside the ruling of the learned trial magistrate.

3rd Respondent’s Submissions 18. The 3rd respondent filed its submissions on the January 18, 2022. It cited the case of Moses Mwangi Kimari v Shammi Kanjirapparambil Thomas & 2 others [2014] eKLR where it was stated:(16)The law governing dismissal of suit for want of prosecution cannot be called upon to justify itself; it is well settled. I am content to cite a work of this court in the case of Nbi HCCC No Utalii Transport Company Limited & 3 others v NIC Bank & another [2014] eKLR that.When the applicant states and correctly so, that:“‘’It is the primary duty of the plaintiffs to take steps to progress their case since they are the ones who dragged the defendant to court’’.Then exhorts that ‘’over one year has lapsed without the plaintiffs taking any step to progress their case’’.And makes a strong conclusion that ‘’the plaintiffs’ inertia runs contra to the overriding objective of the court stipulated in section 1A, 1B and 3A of the CPA’’.…. any case which is attended to by inordinate delay which has not been explained should be dismissed straight away unless the interest of justice would demand otherwise. Justice would demand that the process of court be vindicated from blatant breach by parties. It will not, therefore, be just to sustain this suit.”

19. Further reliance was placed onWanjiku Njoroge v National Environmental Management Authority (Nema) & another [2013] eKLR to urge the court to dismiss the appeal where it was stated:“The application is not contested. despite being duly served, the plaintiff/respondent did not file any response.The applicable law is order 17 rule 2(1) which provides as follows:““In any suit in which no application has been made or step taken by either party for one year, the court may give notice in writing to the parties to show cause why the suit should not be dismissed, and if cause is not shown to its satisfaction, may dismiss the suit.”order 17 rule 2(3) provides as follows:““Any party to the suit may apply for its dismissal as provided in sub-rule 1”It is clearly in exercise of the power conferred by order 17 rule 2(3) that the 2nd defendant has brought this application to have this suit dismissed for want of prosecution. This is a relatively straightforward case. It is evident that the plaintiff appears to have lost interest in this matter and has not made any application or set the suit down for hearing since the ruling on her application was delivered on June 22, 2011, which is now over 2 years ago. It is also clear that she has even ceased to give instructions to her lawyers who have applied to cease acting for her. Clearly, the time period required in the law cited above has been achieved, thereby giving this court the right to make this ruling. I find that the plaintiff has lost interest in this suit and it is highly unfair on the defendants to let this suit continue to tax them. Accordingly, I hereby allow this application and hereby dismiss this suit with costs to the defendants.”

Analysis And Determination 20. This being the first appeal, I am required to reconsider the evidence adduced, re-evaluate it and draw my own conclusions, bearing in mind that I did not hear or see the witnesses who testified. See Selle & another v Associated Motor Boat Company Ltd & others [1968] EA 123.

21. I have accordingly considered the trial court record and the respective rival submissions. It is a well settled principle that a court should be slow to dismiss a suit for want of prosecution unless where interests of justice dictate otherwise. The rationale to this principle is that every party must be accorded the right to be heard pursuant to constitutional dictates of the non-derogable right to fair hearing. See Naftali Opondo Onyango v National Bank of Kenya Ltd [2005] eKLR, that:“However, in deciding whether or not to dismiss a suit under rule 6 it is my view that a court will be slow to make an order if it is satisfied that the hearing of the suit can proceed without further delay, that the defendant will suffer no hardship and that there has been no flagrant and culpable inactivity on the part of the plaintiff.”... Now applying the principles enunciated in the authorities, I have found that, the delay of under one year in this case may be long but it is not inordinate.” (emphasis added)

22. In Mwangi S. Kimenyi v Attorney General and another, Misc civil suit No 720 of 2009, the court restated the test as follows:“1. When the delay is prolonged and inexcusable, such that it would cause grave injustice to the one side or the other or to both, the court may in its discretion dismiss the action straight away. However, it should be understood that prolonged delay alone should not prevent the court from doing justice to all the parties- the plaintiff, the defendant and any other third or interested party in the suit; lest justice should be placed too far away from the parties.2. Invariably, what should matter to the court is to serve substantive justice through judicious exercise of discretion which is to be guided by the following issues; 1) whether the delay has been intentional and contumelious; 2) whether the delay or the conduct of the plaintiff amounts to an abuse of the court; 3) whether the delay is inordinate and inexcusable; 4) whether the delay is one that gives rise to a substantial risk to fair trial in that it is not possible to have a fair trial of issues in action or causes or likely to cause serious prejudice to the defendant; and 5) what prejudice will the dismissal cause to the plaintiff. By this test, the court is not assisting the indolent, but rather it is serving the interest of justice, substantive justice on behalf of all the parties.”

23. I concur with the holding in Robert Kimani Ndungú v Kenya Deposit Insurane Corporation (Being sued in its capacity as the receiver manager of Chase Bank Limited (In Receivership) [2022] eKLR where it was stated:“44. In these circumstances, what the court ought to do when confronted with such circumstances is to consider the twin overriding principles of proportionality and equality of arms which are aimed at placing the parties before the court on equal footing and see where the scales of justice lie considering the fact that it is the business of the court, so far as possible, to secure that any transitional motions before the court do not render nugatory the ultimate end of justice. The court, in exercising its discretion, should therefore always opt for the lower rather than the higher risk of injustice.”

24. It is true that the appellant delayed in presenting the subject application and failed to attend court consequent to which the matter was dismissed for want of prosecution. Nonetheless, the 3rd respondent has failed to demonstrate in what way the said delay in filing the application posed risk to fair trial or substantially prejudiced their case. On the other hand, the appellant explained why there was delay in filing the application. The same was attributed to the dismissal of the suit while the test suit was yet to be heard and determined. It moved with haste after delivery of the judgment in the said test suit and found out that the same had been dismissed. On the issue of non-attendance, the appellant’s counsel explained reasons as to why he was of the assumption that the matter though fixed for hearing was not going to proceed. The appellant’s advocate further owned up to not informing his client and their counterparts of the said letter thus, a mistake on their part ought not to be visited on the client.

25. In view of the foregoing circumstances, I find plausible explanations for the non-attendance on the part of the appellant or his counsel as well as the delay in filing the application seeking to reinstate the suit has been advanced and I tilt the benefit of doubt towards the appellant. In order for both parties to benefit from substantive justice, it is crucial that they both be heard. Further, the mistake having been significantly on the part of the appellant’s counsel, it would be draconian to lock out the appellant from accessing the seat of justice solely for the shortcomings of his counsel.

Disposition 26. In conclusion, the appeal succeeds and I order as follows:i.The trial court’s decision dismissing the appellant’s application dated the August 8, 2019 is hereby set aside and the appellant’s suit is reinstated.ii.The appellant is to pay the respondents’ costs of appeal as well as the costs of the application dated the August 8, 2019 in the trial court.iii.The appellant shall ensure that the suit is fixed for hearing within 45 days from the date hereof.

27. It is so ordered.

DATED AND DELIVERED AT NAIVASHA THIS 13TH DAY OF DECEMBER, 2022. G.W. NGENYE-MACHARIAJUDGEIn the presence of:1. Mr. Muriuki for the Appellant.2. M/s Wangai Nyuthe & Co. Advocates for 3rd Respondent absent-duly notified online.