[2022] KEHC 11159 (KLR)

Wambugu v Disciplinary Tribunal Of LSK (Judicial Review E074 of 2020) [2022] KEHC 11159 (KLR) (Judicial Review) (16 June 2022) (Ruling)

Neutral citation: [2022] KEHC 11159 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Judicial Review

Judicial Review E074 of 2020

AK Ndung'u, J

June 16, 2022

Between

John Wacira Wambugu

Applicant

and

Disciplinary Tribunal Of LSK

Respondent

Ruling

1. The application before court is dated December 8, 2021. It seeks orders:1. That the honourable court do issue an order reinstating Judicial Review Misc Application E074 of 2020 which was dismissed on October 4, 2021 for reason of want of prosecution.2. That this honourable court be pleased to reinstate the same for hearing.3. That costs of the application be provided for.

2. It is premised on 13 grounds viz:1. The applicant filed a chamber summons Application dated 10th December, 2020 seeking leave to file Judicial review proceeding for orders of certiorari to quash the decision of the Law Society of Kenya Disciplinary Tribunal in cause No 160 of 2019 involving the ex-parte applicant, John Wacira Wambugu, the order issued on August 17, 2020 denying the applicant stay of proceedings pending taxation of bills of cost dated 61b August, 2020. 2.That on April 9, 2021 the honourable court granted conditional leave to file the substantive motion in the terms that," The leave granted herein on December 16, 2020 to commence judicial review proceedings shall operate as a stay of the direction of the respondent herein directing the applicant to deposit the sum of Kshs 11,279,287/= with the respondent, pending the hearing and determination of the ex parte applicant's substantive notice of motion, only on condition that the ex parteapplicant deposits the said sum of Kshs 11,279,287/ = in court within twenty-one (21) days of the date of this ruling, and upon default the stay orders herein will automatically lapse."3. That aggrieved by the said orders the applicant filed an appeal against the whole of the decision being Court of Appeal, Civil Appeal No. E377 OF 2021, John Wacira Wambugu vs The Law Society of Kenya & Anor.4. That on September 28, 2020 the Ex parte applicant was served by the court with a notice to show cause why the suit should not be dismissed for want of prosecution.5. That the ex-parte applicant responded to the notice to show cause vide a letter dated September 29, 2021 explaining that the applicant had filed an appeal against the orders of the court issued on April 9, 2021. 6.That on December 7, 2021 the ex-parte applicant was served with an order of the court dated November 3, 2021 dismissing the suit for want of prosecution.7. That the notice to show cause was premature as one year had not lapsed since the last directions of the court which were issued on April 9, 2021. 8.That the suit was dismissed pre-maturely contrary to the provisions of the Civil procedure rules.9. That the ex-parte applicant had filed its substantive motion on December 22, 2020 and served the same upon the interested party who had responded to the same.10. That counsel on record handling the matter interpreted the ruling of this court delivered on April 9, 2021 to mean that leave to proceed with the substantive motion was pegged on fulfilling the conditions granted by the honourable court which she had since appealed against hence the delay in filing of the submissions to the notice of motion dated December 22, 2020 as directed by the court.11. That mistake of counsel should not be visited upon a client who is an innocent party who will adversely be affected by the order issued by this honourable court dismissing this suit.12. That this application has been brought in reasonable time and the ex-parte applicant kindly urges this honourable court to grant him the orders sought so that this matter can be heard and determined on merits.13. That it is in the interest of Justice and the rules of natural justice that the application herein be certified urgent and the suit herein be reinstated.

3. It is supported by the affidavit of Rachael Karani Advocate sworn on the 8th of December 2021 and her further affidavit sworn on the March 1, 2022. The gist of the application, the grounds and affidavits in support is that the applicant was granted conditional leave to institute judicial review proceedings on April 9, 2021 on the following terms;“That the leave granted herein on the 16th of December 2020 to commence judicial review proceedings shall operate as a stay of the direction of the respondent herein directing the applicant to deposit the sum of Ksh 11,279,287 with the respondent, pending the hearing and determination of the ex parte applicant’s substantive notice of motion, only on condition that the ex parte applicant deposits the said sum of Ksh 11,279,287 in court within 21 days of the date of this ruling and upon default the stay orders herein will automatically lapse’’

4. The applicant was aggrieved with this order and he lodged CA no E377of 2021. This matter was dismissed after a notice to show cause why the suit should not be dismissed for want of prosecution was served to which notice the applicant had responded via a letter dated September 29, 2021. The applicant’s position is that the dismissal was irregular as one year had not lapsed since the orders of court of April 9, 2021 thus the dismissal offended the civil procedure rules.

5. It is the applicant’s contention that she interpreted the order granting conditional stay to mean that that proceeding with the substantive motion was pegged on fulfilling the conditions granted which conditions the applicant had appealed against. It is the applicant’s case that the delay is adequately explained, is not inordinate.

Interested Party’s Case 6. The interested case is contained in the replying affidavit of Steve Kimathi sworn on February 4, 2022. It is their case that the applicant failed to comply with the directions of court to file submissions within 21 days from April 9, 2021 only to file a notice of appeal on May 6, 2021. Kimathi depones that an appeal is not an automatic stay of proceedings. It is urged that the letter to the registrar on receipt of the notice to show cause why the suit should not be dismissed was not appropriate as the applicant ought to have attended court to explain why the suit ought not to be dismissed. Failure to understand the order of court is a mere excuse and the court is urged not to entertain it.

Applicant’s Submission 7. The applicant flags 3 issues for determination1. Whether the delay in prosecution of the suit was intentional and /or inordinate2. Whether the suit raises triable issues.3. Whether failure to reinstate the suit will cause serious prejudice to the ex parte applicant

8. It is submitted that the court should aim at sustaining rather than terminating the suit. Reliance is placed on the case of Pravichandra Jamnadas Kakad v Kenya bus Services Ltd & Another[2014] eKLR. The Interested party’s case submissions It is urged that the delay in prosecuting this case was not intentional. The same arose from a misinterpretation of the orders of court by counsel. Counsel urges that the ruling of the court of April 9, 2021 was ambiguous and that mistake of counsel should not be visited on client. The delay is not inordinate and on this proposition, counsel cited Utalii Transport Company Ltd & 3 Others v NIC Bank Ltd & Another [2014] eKLR.

9. Counsel submits that the notice to show cause was issued prematurely as the last orders of the court in the matter were on April 9, 2021. It is urged that the applicant has an arguable case and should not therefore be shut out of court. Counsel adds that no prejudice will be suffered by the respondents. Reliance is placed on the case of Utalii Transport Co (Supra). On the contrary, it is urged that the applicant would suffer prejudice as he would be removed from the seat of justice without a hearing.

Interested Party’s Submissions 10. The interested party flags 2 issues for determination:i.Whether this honourable court should issue an order reinstating judicial review Misc Application E074 of 2020 which was dismissed on October 4, 2021 for want of prosecution.ii.Who should bear the costs of the application.

11. It is submitted that the power to dismiss a suit for want of prosecution is discretionary. For the court to exercise the discretion judiciously, it must consider;a.Whether there has been intentional, inordinate and inexcusable delay.b.Whether the delay or conduct of the applicant amounts to an abuse of the court andc.Whether the delay is one that gives 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 other party.

12. Counsel submits that although 1 year had not lapsed as provided for under order 17 of the Civil Procedure Rules, the court acting in the interests of justice may overlook a procedural constraint in the fulfilment of goals of justice and of fair hearing and dismiss a suit for want of prosecution. Reliance is placed on the decision in Mable Muruli v Wycliffe Ambetsa Oparanya & 3 Others [2016] eKLR.

13. It is submitted that the applicants conduct after the orders of court of April 9, 2021 has led to indefinite abeyance of the matter and can be termed inordinate. There is no compliance with any of the orders of court of April 9, 2021. The notice of appeal was filed outside time and in any event an appeal does not operate as a stay.

14. It is submitted that the applicants conduct amounts to abuse of the court process. It is urged that the applicant has not demonstrated the prejudice he would suffer and instead, that delay would prejudice the Interested Party.

Analysis and Determination. 15. I have had occasion to consider the application, the supporting grounds and affidavit as well as the response by the interested party. I have had due regard to the learned submission by counsel. For a better grasp of the history of the suit, I have had recourse to the record of proceedings. Arising therefrom, the issues for determination are;1. Whether the applicant has laid sufficient grounds to warrant the exercise of discretion in his favour and have the suit reinstated.2. Who bears the costs of this application?

16. The power to reinstate a dismissed suit is discretionally. The aim is to do justice to the parties. I would add that the court, too, ought to consider the conduct of the parties and the general effect on administration of justice and with special regard to the constitutional edict in article 159(b) that justice shall not be delayed. Musyoka J in Catherine Kigasia Kivai v Ernest Ogesi Kivai & 4 others [2021] eKLR stated:“Reinstatement of a suit is at the 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 & another[2018] eKLR ((JN 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.’One of the issues that usually confront the courts with respect to dismissal of suits for delays and the subsequent applications for reinstatement, is the need for expeditious conclusion of suits’’.

17. In Mobile Kitale Service Station vs Mobil Oil Kenya Limited & another[2004] eKLR (Warsame J as he then was ) held:“I must say that the courts are under a lot of pressure from backlogs and increased litigation, therefore it is in the interest of justice that litigation must be conducted expeditiously and efficiently so that injustice caused by delay would be a thing of the past. Justice would be better served if we dispose matters expeditiously. Therefore, I have no doubt the delay in the expeditious prosecution of this suit is due to the laxity, indifference and/ or negligence of the plaintiff. That negligence, indifference and/or laxity should not and cannot be placed at the doorsteps of the defendant. The consequences must be placed on their shoulders.”

18. The mainstay of the applicant’s case in the present application is that counsel misinterpreted the orders of court of April 9, 2021. The relevant portion of the orders was as follows;I. The leave granted herein on the 16th of December 2020 to commence judicial review proceedings shall operate as a stay of the direction of the respondent herein directing the applicant to deposit the sum of Ksh 11,279,287 with the respondent, pending the hearing and determination of the ex parte applicant’s substantive notice of motion, only on condition that the ex parte applicant deposits the said sum of Ksh 11,279,287 in court within 21 days of the date of this ruling and upon default the stay orders herein will automatically lapse.II. The respondent is granted leave to file and serve its response to theex parte applicant’s substantive notice of motion dated December 22, 2020 within 14 days of today’s date.III. The ex parte applicant shall file and serve the respondent and interested party with submissions on the substantive motion dated December 22, 2020 within 21 days of service or default thereof.

19. The record readily shows that the applicant did not comply with the orders of April 9, 2021 which orders were directed at disposal of the suit. The court takes note that the applicant by craft has in his application deliberately avoided a mention of the orders obligating him to file submissions within a specified period. Instead the applicant has dwelt on order No I of the orders of April 9, 2021 which order the applicant’s counsel terms ambiguous. so, when is something ambiguous? The Oxford Advanced Learners Dictionary, 8th Edition defines ambiguous as :‘That can be understood in more than one way; having different meanings.

20. A plain reading of the orders in my considered view reveals no ambiguity. None of the orders could be understood in more than one way or had different meaning. Be thus as it may, even assuming everything else in the orders was ambiguous, the order on the timelines for filing submissions was crystal clear. It was not complied with.

21. When the applicant was served with a notice to show cause why the matter should not be dismissed, the applicant in response through his advocates wrote a letter to the Deputy Registrar of the court dated September 29, 2021. The contents of the letter were as follows;“We refer to the above matter which is coming for a notice to show cause on October 4, 2021. Kindly note that the above matter was heard and a ruling delivered on the April 9, 2021 by the honourable Lady Justice Nyamweya.The ex parte applicant has since appealed against the decision where he filed COACA E377 of 2021, John Wacira Wambugu v The Law Society of Kenya & Anor.’’

22. In the circumstances a serious judicial process requiring a hearing before the court was answered through a casual letter to the deputy registrar the dire consequences of failure to show cause notwithstanding. The cavalier attitude demonstrated therein is mind boggling.

23. Before the court was a judicial review application. By their very special nature, judicial review proceedings ought to be prosecuted expeditiously. As was held by Nyamu, J (as he then was) in Republic vs Public Procurement Administrative Review Board & AnotherEx ParteSelex Sistemi Integrati Nairobi HCMA No 1260 of 2007 [2008] KLR 728 and Mureithi & 2 Others vs Attorney General & 4 Others [2006] 1 KLR (E&L) 707: “Speed and promptness are the hallmarks of judicial review.”An applicant in judicial review must thus act promptly and failure so to do would attract undesirable results.

24. As was held in John Ongeri Mariaria & 2 Others vs Paul Matundura Civil Application No Nai 301 of 2003 [2004] 2 EA 163:“Legal business can no longer be handled in such sloppy and careless manner. Some clients must learn at their costs that the consequences of careless and leisurely approach to work… must fall on their shoulders...Whereas it is true that the court has unfettered discretion, like all judicial discretion must be exercised upon reason not capriciously or sympathy alone...Justice must look both ways as the rules of procedure are meant to regulate administration of justice and they are not meant to assist the indolent”.

25. I have looked at the facts surrounding this suit and the conduct of the applicant. By stating that the orders of court were ambiguous thus the failure to act in the matter, the applicant is not entirely candid. I find no inadvertence or excusable mistake on the part of the applicant. The conduct of the applicant in the matter militates against the exercise of discretion in his favour.

26. With the result that issue number 1 answers in the negative. The application thus fails and is dismissed. Each party to bear its own costs.

DATED SIGNED AND DELIVERED VIRTUALLY THIS 16TH DAY OF JUNE 2022. .........................A.K. NDUNGUJUDGE