1.The applicants, by an application dated 2/2/2021 brought under provisions of order 51 rules 1 and 2 of the Civil Procedure Rules; and Article 50 of the Constitution seek orders;i.Spentii.Spentiii.That the court be pleased to set aside the orders issued on the 26/9/2019 dismissing the applicants application dated 23/9/2018 for failure to fix a mention date as per the Court’s directions.
2.Upon grounds that the court had directed the applicants to pay court adjournment fees of Kshs. 4,000/= and file submissions and within 14 days to take a mention date failing which the application would stand dismissed.
3.It is further stated that the said Kshs. 4,000/= was paid and submissions filed as directed by the court, but the mention date was not taken within the time stated, as the Deputy Registrar informed the applicants that the court file could not be traced, and thus could not adhere to the timelines set by the court.
4.Joyce Chichi Advocate for the applicants swore thesupporting affidavit wherein she deponed to the above material facts, and added that the failure was not deliberate or intentional.
5.In opposition to the application, Mildred K. Gakoi Advocate for the respondent swore and filed a Replying Affidavit, and affirmed that the court orders were complied with save the taking of the mention date within 14 days.
6.The Respondent has stated a chronology of the events that took place from the initiation of the subject case before the trial court, citing lack of seriousness in progression of the case up to date of the Judgment in the Lower Court and execution proceedings arising therefrom.
7.It is further deponed that indeed the applicants’ Advocates wrote a letter to the Deputy Registrar seeking to be given a mention date, but then waited month to file this application after the orders lapsed, thus exhibiting lack of seriousness in the progression of the case.
8.The respondent further averred that the applicants have not demonstrated any reason why they took that long to fix this application for hearing, and stated that the delay was intentional so as to continue causing therespondent pain and suffering since the case was filed in 2013.
9.I have considered the parties written submissions and cited authorities.
10.The applicants’ submissions are dated 18/7/2021. It is submitted that the current advocates took over the conduct of the case from M/s Kairu & McCourt Advocates sometimes in 2020 and thereafter, their efforts to fix the matter for hearing was due to the court file not having been traced at the court registry as shown by the letters addressed to the Deputy Registrar and by complying with court orders wherein they paid the sum of Kshs. 4,000/= as a condition precedent for stay orders.Order 12 rule 7 of the Civil Procedure Rules provides that where judgment has been entered or suit has been dismissed, upon application, the dismissal order may be set aside upon terms as the court may deem fit.
12.The respondent’s Submissions are dated 26/7/2021.It is submitted that the orders of 26/9/2019 ought not be set aside due to the none compliance and lack of seriousness by the applicants in the manner of the conduct of the case, up to its dismissal, as well as applications filed under the appeal. It is the respondent’s submission that the delays are only made to frustrate the respondent by the current application filed three years ago. It is stated that the applicants are guilty of laches, without any sufficient explanation and lack good faith in bringing the application.
14.The issue before me is whether the applicants have laid a plausible basis upon reasons as to why the court orders of the 26/9/2019 should be set aside for dismissing the application dated 23/9/2018 due to failure to fix a mention date within 14 days as directed by the court.
15.Indeed, the applicant complied with the said orders by paying the sum of Kshs. 4,000/= being court adjournment fees, and also filing the submissions within the time set by the court. The reasons for the failure, in my opinion have been demonstrated, that the court file could not be traced at the registry to facilitate taking the mention date. I have noted that the applicant wrote to the Deputy Registrar on the 12/1/2021 albeit late by almost three months. I agree with the Respondents that prior conduct by the respondent’s advocates was nothing but lack of seriousness and indolence in obeying court orders.
16.But then, what is the position of the applicants who entrusted their case to the Advocates whose conduct leaves a lot to be desired? Should the applicants be punished for the indolence of their then Advocates?
18.Further, in the case Ivita vs Kyumbu (Supra), the court held that if the delay is prolonged and inexcusable, and if Justice can be done despite the delay, the case ought not be dismissed. The court went further to render that justice is justice to both the Plaintiff and the Defendant, and their positions must be considered, and the prejudices to both too must be considered before the suit is dismissed.
19.What matters to the court is that substantive justice ought to be dispensed to both parties. article 159 (2)(d) of the Constitution clearly provides that the court ought to do substantive justice without being bound by procedural technicalities – See Mwangi S. Kimenyi vs AG & another  e KLR.
20.The court in Allen vs Alfred Mc Alphine, Birket vs James and AGIP (K) Limited rendered that the prejudice may be ascertained by looking at the nature of the case, importance of the claim or subject matter, legal capacity of the parties, rights of the parties in the suit among others.
21.I have considered the prejudices that both parties may be exposed to. For the applicants, a denial of the orders sought will no doubt cause execution to be levied against them in line with the judgment entered on the 4/6/2018 against them.
22.For the respondent, its fear is that should it pay the claim and the appeal is successful, it may not be able to recover the money, there being no knowledge of the financial standing.The above having been considered, each party will suffer some prejudice whichever ruling the court will eventually deliver. See Samuel Mwaura Mutembei vs Josephine Wanjiru Ngugi & another  e KLR.
23.The power of the court to grant or refuse an application for either setting aside or stay of execution, or any other was stated in the old age case of Butt vs Rent Restriction Tribunal  e KLR.
24.The applicant’s failure to take a mention date within the time frame directed by the court, is explained. In any event, that in my view is a technical procedural error that does not go into the merits of the case. The explanation given that the court file could not be traced at the court registry within the stated time frame has not been controverted.
25.I want to give the benefit of doubt to the applicants that indeed the court file could not be traced, more so, as the Deputy Registrar did not respond to the letter by the applicant seeking to be given a mention date.
26.That as it may, and notwithstanding the applicants advocates indolence and lack of seriousness by past conduct to progress the case to finality with speed, I am persuaded that it will be in the interest of Justice and fairness that the orders sought are granted.
28.The application by the appellants dated 23/9/2018 sought, in the main leave to file an appeal out of time, against the Judgment dated 4/6/2018 and renewed on 25/9/2018; as well as a stay order of execution pending the hearing and determination of the Intended Appeal.
29.This application having been dismissed due to the applicant’s failure to take a mention date in time exposes the applicant to execution proceedings, but which due to part performance of the courts directions were forestalled.
30.I find it prudent to allow parties to canvass this application by allowing the present application so as to pave way for the application dated 23/9/2018 to be heard and determined.
31.Consequently, the application dated 2/2/2021 is allowed in terms of prayer No. 3. The orders of the court issued on the 26/9/2019 are set aside. The application dated 23/9/2018 is hereby fixed for hearing interpartes on 21.7.2022.
32.In the meantime, there shall be a stay of execution of the trial court’s Judgment and decree pending hearing and determination of the application dated 23/9/2018.
33.The applicants shall pay costs of this application.Orders accordingly.