REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KERUGOYA

(CORAM: R. MWONGO, J.)

MISC. CIVIL APPLICATION  NO. 263 OF 2013

FAITH WANJIRU MAKENDA...........................................1^ST APPELLANT /APPLICANT

PAULINE WANJIKU..........................................................2^ND APPELLANT /APPLICANT

SUSAN WAMBUI KABABA..............................................3^RD APPELLANT /APPLICANT

IRENE WAWERU MWEA.................................................4^TH APPELLANT /APPLICANT

VERSUS

CHARLES GACHOKI MWEA.......................................................................RESPONDENT

RULING

1. The applicants’ application dated 3^rd June, 2021, and invokes the provisions of Section 1A, 1B, 3A of the Civil Procedure Act and Order 45 Rules 1 & 2 of the CPR. It seeks to review the lower court’s order of 5^th December, 2017, dismissing the appeal filed by the applicants for want of prosecution.

2. The grounds founding the application are:  that the applicants’ previous lawyer died in 2017 but the applicants found out only in 2017; that when the appeal was dismissed the applicants’ advocate was deceased and he could therefore not respond to the application for dismissal; that they were not served with the application for dismissal; that it is only after the respondent indicated that he intended to sub-divide the suit land in late May 2021 that the applicants learnt of the facts set above; and that there is sufficient reason to warrant of renew and setting aside of the orders of dismissal of appeal so that they are not condemned unheard.

3. The Respondent opposes the application through his replying affidavit  on the grounds that: the application is an abuse of the due process of the court; it has no merits; That after the applicants lost the case in the lower court filed this appeal in 2008 and obtained stay of execution of the judgment in 2011;That the appeal was then transferred from Embu High court to this court in 2013; That seven years after filing of the appeal, the same was dismissed for want of prosecution in 2017; That it is clear the applicants were not interested in the appeal and their only intention was to prevent the distribution of the properties as per the certificate of confirmation of grant; and that the case belongs to the litigants and not the advocate since it is always possible to change advocates.

4. The applicant prays that the court should employ the principle that a right to a hearing and therefore fair trial as enshrined in Article 50(l)of the Constitution 2010 is a fundamental human right, and also that Article 159 (2),(d) of the Constitution 2010 is the cornerstone of the rule of law. It is thus the duty of the Court to accord or ensure every person who has submitted themselves to its jurisdiction, an opportunity to ventilate their grievances. It is for this reason that judicial discretion to set aside is explicitly donated by Section 1A, 3A, 63 of the Civil Procedure Act.

5. Further, the applicant argues that the court has power under Order 10, Rule 11  “…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”.

6. Finally, the applicant argues that the matter touches on the sensitive issue of land and should be determined on merit.

7. The respondent submits that Order 45 Rules I and 2 of the civil procedure Rules provides for instances when order of review can issue, and that the orders sought are discretionary in nature. The appellants had a duty to demonstrate that they were vigilant all through, but in this case were let down by their advocates. That in 2017, the appeal was dismissed for want of prosecution, about nine years after the filing of the appeal; and that there is no excuse for the dilatory behavour of the applicant.

8. The respondent further submits that present application has been filed in the year 2021, four years after the dismissal order was made. The excuse given in their supporting affidavit is that the appellants were allegedly told by their advocate that they shall be informed once the appeal was admitted and ready for hearing; and that their advocate allegedly died in October 2017 but they didn’t learn about it until this year; that these are untenable excuses.

9. The respondent cited Republic -vs- Laikipia District Land Disputes Tribunal & 3 others (2006) eKLR where Kimaru,J, observed as follows

“This court and various courts of record have stated that a suit once filed is owned by the litigant and his counsel. It behooves a litigant to diligently pursue his case and ensure it has been prosecuted to conclusion. A litigant cannot blame his counsel for failing to inform him of the progress of his case…it cannot in all circumstances be a ground for setting aside adverse order made against such a litigant.”

Analysis and determination

10. There is no doubt that this court has discretion to set aside an order of the lower court dismissing an appeal for want of prosecution. The only issue is whether the circumstances of this case rise to the occasion where the court will exercise that discretion.

11.  In the case of Shah v Mbogo & Another (1967) EA it was held as follows:

‘‘…the court’s discretion to set aside an exparte 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 course of justice.” (Emphasis added).

12. Similarly, in Wilson Cheboi Yego v Samuel Kipsang Cheboi Civil Appeal (Application) No. 2 of 2017 the Court of Appeal of Kenya stated that:

“….we find that in the circumstances of this application, sufficient reason has been given for the applicant’s counsel’s non-attendance on 4^th December, 2018. The applicant has therefore complied with the requirements for the grant of an order reinstating his appeal. Further, the appeal relates to a land dispute and the apnlicant will therefore be granted an opportunity to ventilate his case in the appeal…”

13. The applicants’ main gripe in their application is that their advocate died in October 2017, but that they did not learn about it until 2021 when they promptly filed this application. Consequently, they argue that they were not served with the application for dismissal., and that it is only after the respondent indicated that he intends to sub-divide the suit land in late May 2021 that they learnt about the dismissal of their appeal. In their view there was no delay in filing the application, and if so, such delay was excusable.

14. In the leading authority of Ivita v. Kyumbu (1984) KLR 441 Chesoni J as he then was aptly stated:

“The test is whether the delay is prolonged and inexcusable, and if it is, can justice be done despite such delay.  Justice is justice to both the plaintiff and the defendant, so both parties to the suit must be considered and the position of the judge too, because it is no easy task for the documents and, or witnesses may be wanting and evidence is weak due to the disappearance of human memory resulting from lapse of time.  The defendant must however, satisfy the court that he will be prejudiced by the delay or even that the plaintiff will be prejudiced.  He must show that justice will not be done in the case due to the prolonged delay on the part of the plaintiff before the court will exercise its discretion in his favour and dismiss the action for want of prosecution. Thus, even if the delay is prolonged, if the court is satisfied with the plaintiff’s excuse for the delay, the action will not be dismissed but it will be ordered that it be set down for hearing at the earliest available time”. (Emphasis added)

15. The circumstances in this case clearly show that the applicants’ delay was excusable. The series of events that occurred during the several intervening years were beyond the control of the applicants. After stay was granted in 2011, the file was then transferred from Embu High court to this court after its establishment in 2013; That seven years after filing of the appeal, the same was dismissed for want of prosecution in 2017. They had no way of knowing this except through their advocate on record. That advocate had passed on, but they learnt of his death in 2021. The delay in prosecuting the appeal is therefore excusable.

16. Further, in my view, the applicants have an arguable appeal as it touches on succession and their share of the deceased estate.

Disposition

17. Looking at the case in its entirety, I find, and hold, that the applicants were placed in circumstances where they had no control over the prosecution of the case. In these circumstances, justice demands that they be accorded the opportunity to ventilate their case on appeal. The prejudice, if any, suffered by the respondents can be compensated with costs, should the appeal be unsuccessful.

18. In light of the foregoing, it would be fair and just if the prayer for review is allowed and the appeal reinstated. I so order.

19. The appeal shall be heard expeditiously within the next 60 days.

20. Costs of the application are reserved.

21. Orders accordingly.

DELIVERED AT KERUGOYA ON THIS 15^TH DAY OF MARCH, 2022

R MWONGO

JUDGE

Delivered in the presence of:

1.  Ms. Muturi holding brief for Magee for Applicants

2.  Mr. Nyaga holding brief for Kagio for Respondent

3.  Murage Court Assistant