1.The Application is premised on the matter being dismissed for want of prosecution on 21st September 2021. The Plaintiff moved the Court vide a Notice of motion dated 21st February 2022 and a Supporting Affidavit sworn by Gopal Dhanji Patel.
2.The Plaintiff sought the following orders:i.That this Application be certified as urgent and be heard ex parte in the first instance.ii.That an ex parte order do issue granting leave to the firm of E. Kinyanjui & Co. Advocates to come on record for the Plaintiff in place of the firm of M. M. Gitonga Advocates LLP, the Interested Party.iii.That the Honourable Court be pleased to reinstate ELC Suit No. 1528 of 2016 which was dismissed on 21st September,2021, for want of prosecution.iv.That the costs of this application be provided for.v.That the Court be pleased to issue any other order it deems fit and just in the interest of justice.
3.It is the Plaintiff’s assertion that the matter was unattended due to the Defendant’s failure to serve a hearing notice as directed by the Court. It was averred that the Plaintiff has been ready and willing to prosecute the matter therefore failure to reinstate the suit would be unjust and allow the Defendant to profit from the injustice.
4.The Interested Party in support of the Plaintiff’s application reiterated that the Defendant failed to serve the hearing notice which ultimately led to the dismissal. It was further highlighted that failure of the Plaintiff’s Advocate to attend court ought to be construed as an inadvertent omission for which the Plaintiff should not suffer.
5.Relying on their Replying affidavit dated 31st March 2022, the Defendant asserted that the actions of the Plaintiff portrayed indolence and moreover they lacked substantial proof as to why the Plaintiff’s Advocate failed to attend court. It was submitted that litigation should come to an end thus praying for the Application to be dismissed.
6.The Court is guided by Order 12 Rule 7 of the Civil Procedure Rules which expressly provides as follows:
7.I have perused the Court proceedings to confirm that since the commencement of the suit, the Plaintiff has been keen to have the matter proceed for hearing. I have also considered the fact that on 21st September 2021 the day the suit was dismissed, the said date had been fixed by the court in the presence of the Defendants and in the absence of the Plaintiff and that the same was never served upon the Plaintiff. I have further considered that although the reinstatement application was filed several months after the dismissal, the issues arising from the main suit are of great significance to both the Plaintiff and Defendants.
8.For this reason, I hereby issue the following orders:i.The order of dismissal given on 21st September 2021 is hereby set aside and the suit is reinstated for hearing.ii.The firm of E. Kinyanjui & Co. Advocates is hereby granted leave to come on record for the Plaintiff in place of the firm of M. M. Gitonga Advocates LLP, the Interested Party.iii.Costs of the application shall be reserved to abide the determination of the main suit.
9.It is so ordered.