[2023] KEHC 26937 (KLR)

Taib & 3 others v Ahluwalia (Civil Case 512 of 2011) [2023] KEHC 26937 (KLR) (Civ) (15 December 2023) (Ruling)

Neutral citation: [2023] KEHC 26937 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Case 512 of 2011

AN Ongeri, J

December 15, 2023

Between

Abdalla Ali Taib

1st Plaintiff

Mohamed Ali Taib

2nd Plaintiff

Taib Ali Taib

3rd Plaintiff

Omar Msellem

4th Plaintiff

and

Rabinder Kaur Ahluwalia

Defendant

Ruling

1. The application coming for consideration is the one dated 22/3/2023 brought under Articles 48 and 159 of the Constitution of Kenya 2010, Sections 1A, 1B and 3A Civil procedure Act, Cap 21, Order 10 Rule 11, Order 51 Rule 1 of the Civil Procedure Rules 2010 and all other enabling provisions of the law seeking to review and set aside the order issued on 16/3/2022 dismissing this suit for want of prosecution.

2. The application is based on the following grounds;i.The application herein is made without unreasonable delay.ii.This Plaintiffs have prosecuted their case and closed the same and the same only awaiting the Defendant’s witnesses and their case.iii.That no Notice of Show Cause why this case ought not be dismissed for want of prosecution was ever served upon the Applicants/Plaintiffsiv.That in any case, the Applicants/plaintiffs have already prosecuted and closed their case, and it is the Defendant who has not urged her Defence.v.That the Applicants jointly with the 4th Plaintiff filed suit on 24 November 2011 vide a Plaint of even date seeking interalia orders compelling the Defendant and entities acting at her behest to remove egregiously defamatory publications on the internet and orders restraining further publication of defamatory content as well as damages for the injury suffered by the Plaintiffsvi.The suit is part heard pending Defence hearing as the Plaintiffs presented all their witness and closed their case way back in 2017vii.At all material times, the Applicants as corroborated by the Court record, have been proactive in the hearing of the suit and have never sought an adjournment in the matter. It is the Defendant who has taken steps to derail the matter including attempting to introduce a new witness and witness statement long after the Plaintiff had closed their case.viii.A formal application seeking admission of the statement was argued by the parties over several months and consequently dismissed and that following dismissal of the said Application, the Applicants remained proactive in proceeding with the suit, however, the Defendant on several occasions sought adjournments.ix.On 20 February 2019, the Defendant's Advocates on record filed an application to cease acting which application was dismissed for non-attendance on 27th March 2019 having come up on two previous occasions without being prosecuted by the Defendant's Advocate.x.The suit was fixed for Defence hearing on 12 June 2019. Unfortunately, the matter was not listed on the said 12th June 2019 as the file was missing from the Court registry. The Applicants, thereafter, severally visited the Court registry and wrote to the Court registry seeking assistance in locating the file.xi.A few months later, the COVID19 pandemic led to the closure of the Court for 1 year hindering the Applicants efforts in following up on the tracing of the file.xii.Following several correspondences with and physical visits to the court registry, the file was finally traced and correspondence from the Court was received on 30th September 2022 alerting the Applicants in this regard.xiii.The Applicants invited the Defendant's Advocates for fixing of a date but on the date their representatives appeared in Court, the registry informed the said representatives that the suit was dismissed.xiv.A perusal of the Court record showed that the matter was dismissed on 16th March 2022 by Hon. Justice Sergon. That the suit was listed on that date as coming up for dismissal pursuant to Order 17 Rule 2(1) of the Civil Procedure Rules. It is material that the suit was dismissed in the absence of all the parties, yet it is alleged that they were all served with the notice.xv.The Applicants applied to the Court registry for the Court Order in order to file the present application for reinstatement which Court Order issued on 2nd December 2022 was released to the Applicants on 6th December 2022 during which time the Applicants’ Advocates office had closed down for the festive season and left the country for unavoidable reasons for a period of 3 months.xvi.The Applicants moved with haste to file the present Application.xvii.That in the circumstances, it would be just and fair for the Honourable Court to exercise its power and discretion to reinstate the suit and allows the matter to be conclusively determined on its merits.xviii.There will be no prejudice or harm suffered by the defendant if the suit is reinstated and heard on its merits.xix.Conversely, if the suit is not reinstated, the applicants will have been ripped off the seat of justice and would be subjected to irreparable harm.xx.It is in the interest of justice that the application is allowed as prayed.

3. The respondents opposed the application and filed a replying affidavit sworn on 4/5/2023 in which it is deposed that the matter has been inactive for a year. A notice to show cause was issued to the parties’ advocates and the applicants did not attend court on the scheduled day to show cause why the matter should not be dismissed.

4. It was also deposed that the Covid 19 pandemic is not a legitimate panacea for inaction by the applicant, if they had been minded to fix a date. The applicants’ admission is that the court was closed for one year only and their inaction lasted nearly six years.

5. He deposed that the file herein is alleged to have gone missing in June 2019 which was well over 10 months before the Covid 19 pandemic struck, and no actions had been taken to trace the file or have the same reconstructed. He indicated that it is not true that the file disappeared on to reappear and yet on the 16/3/2022 it was before the court for dismissal.

6. He averred that the correspondences clearly show that the only communication made to the court and/or its Registry was on 25/9/2019 through a letter dated 19/9/2019, a whole month after the said file is alleged to have gone missing.

7. Further, that it is apparent that the Applicants did not become aware of the file resurfacing on 30/9/2019 as they allege as that would mean their actions of 8/6/2022 in requesting for a date to be fixed for hearing before a file they allege was missing was a facade put up to cover their inordinate delay.

8. The 1st 2nd and 3rd applicants submitted that the power to set aside Ex-Parte Orders or Judgments are discretionary and the Court must use its discretion to reach a conclusion while also ensuring that Justice has been done. The Court ought to be guided by the locus classicus case of Shah v Mbogo [1967] E.A 470 where the Court of Appeal for Eastern African held: - “applying the principle that the Court’s 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 not to assist a person who has deliberately sought (whether by evasion or otherwise) to obstruct or delay the cause of justice, the motion should be refused”.

9. The applicant submitted that the overriding objectives espoused in Section 1A and 1B and then fortified by Article 159 of the Constitution, were enacted to inter alia ensure the dispensation of fair, swift, efficient and substantive justice. The dismissal of the suit without notice to the Plaintiffs/applicants or to the Defendant/respondent for that matter removed the Plaintiffs/applicant from the seat of justice.

10. The sole issue for determination is whether the suit should be reinstated for hearing of the defence case.

11. I find that it is not in dispute that the plaintiffs had already closed their case when the suit was dismissed.

12. The suit ought to have been decided on the evidence on record.

13. It was held in Bilha Ngonyo Isaac v Kembu Farm Ltd & another & another [2018] eKLR ((JN. Mulwa J), which echoed the decision of the court in Shah v 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.”

14. I reinstate the suit for defence hearing.

15. Defence hearing to proceed on 17/1/2024.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 15TH DAY OF DECEMBER, 2023A. N. ONGERIJUDGE