Issue Number 1Whether the honourable court is seized and possessed of the requisite J urisdiction to set aside the dismissal orders made pursuant to the provisions of Order 17 Rule 4 of the Civil Procedure Rules 2010.
28.Before venturing to address and deliberate upon the first issue herein, it is appropriate to provide and supply a brief background culminating into the dismissal of the subject suit.
29.Suffice it to point out that the subject matter was fixed and listed for hearing on the September 21, 2022.
30.However, when the matter herein was called out, counsel for the Plaintiff/Applicant indicated that same would not be ready to proceed with the scheduled hearing.
31.In particular, counsel for the plaintiff/applicant applied for an adjournment on the reason and basis that the Plaintiff’s witness had experienced a domestic emergency issue and because of the said emergency, the witness was not capable of attending court.
32.Be that as it may, counsel for the plaintiff/applicant contended that the details of the domestic/family emergency issue had not been disseminated or conveyed unto him.
33.On the other hand, having entertained the Application for adjournment, the court was not convinced that a credible and sufficient basis had been established and laid before the court to warrant the adjournment.
34.Consequently, the court rendered a ruling, whereby the application for adjournment was declined and dismissed.
35.Subsequently, the court invited counsel for the Plaintiff to proceed with the scheduled hearing and in this regard, counsel for the Plaintiff reverted back and stated that same was still keen to implore the court to grant the adjournment.
36.Noting that the Plaintiff had been afforded the requisite opportunity and latitude to tender evidence and given that no evidence was forthcoming, the court proceeded to and dismissed the suit for want of prosecution.
37.For coherence, the court was explicit that the dismissal of the suit was premised and anchored on the basis of Order 17 Rule 4 of the Civil Procedure Rules 2010.
38.In view of the foregoing, the plaintiff/applicant has now reverted to court and same seeks to have the dismissal orders to be set aside and/or varied.
39.On the other hand, the plaintiff/applicant has also invited the court to reinstate and restore the subject suit for hearing and determination on the merits.
40.Premised on the foregoing, the question that arises is whether this Honourable court is seized and possessed of the requisite Jurisdiction to vary or set aside the impugned dismissal orders.
41.The starting point to interrogating the question of Jurisdiction would be to appreciate the legal meaning, import and tenor of a dismissal order pursuant to Order 17 Rule 4 of the Civil Procedure Rules, 2010.
42.In this regard, it is imperative to note that the dismissal of the suit constitutes and amounts to a Judgment in favor of the defendants/respondents.
43.Secondly, it is also important to recall that the impugned dismissal was made and taken in the presence of counsel for the plaintiff/applicant.
44.To the extent that the dismissal was made and/or taken in the presence of counsel for the plaintiff/applicant, it is therefore trite and established that the impugned dismissal was an inter-partes decision.
45.Given that the decision/dismissal was inter-parties in nature, it therefore means that the resultant Judgment was indeed a final judgment and thus not capable of being set aside or varied by the same court.
46.As pertains to the fact that a dismissal of a suit denotes a Judgment for the defendant, it is appropriate to take cognizance of the holding in the case of Njue Ngai v Ephantus Njiru Ngai & Another (2016) eKLR, where the Honourable Court of Appeal stated and observed as hereunder;
47.Other than the foregoing, by dint of the dismissal having been made or taken inter-parties, can the Honourable court re-visit the subject matter and purport to restore or reinstate same?
48.In my considered view, any attempt to reinstate or restore the suit (sic) for hearing and determination on merits, shall amount to sitting on appeal over and in respect of own decision.
49.Clearly, such an approach is contrary to and in contravention of the established practice of the law. Consequently, such an invite must be deprecated and frowned upon.
50.Nevertheless, I must point out that this very court has hitherto pronounced itself on a similar situation and the court found and held that same would be devoid and divested of Jurisdiction in such situation,
52.In my respectful and considered view, the finding and holdings in the decision alluded to in the preceding paragraphs still holds sway.
53.In a nutshell, I reiterate that having dismissed the suit for want of prosecution under the Provisions of Order 17 Rule 4 of the Civil Procedure Rules 2010, this Honourable court is devoid and bereft of jurisdiction to entertain the instant application.
Issue Number 2Whether the application for review has met and satisfied the requisite grounds enumerated under Order 45 of the Civil Procedure Rules 2010.
54.On the other hand, the Plaintiff/Applicant has also invoked and relied on the provisions of Order 45 of the Civil Procedure Rules and sought to have the impugned orders reviewed.
55.First and foremost, it is imperative to state and observe that any claimant who seeks to partake of an order for review, must establish and satisfy the requisite conditions that have been delineated under the provisions of Order 45 of the Civil Procedure Rules 2010.
56.However, before endeavoring to satisfy and prove either of the named conditions provided under Order 45 of the Civil procedure Rules, the claimant must no doubt isolate, itemize and highlight the requisite grounds upon which the application is premised.
57.Put differently, it behooves the applicant to state and highlight that the application for review is either based on one or all the grounds alluded to under Order 45 of the Civil Procedure Rules and if so, to implead the named grounds.
58.Notwithstanding the foregoing, though the Applicant herein seeks an order for review, same has however failed to isolate, highlight and implead any of the grounds stipulated under the provisions of Order 45 of the Civil Procedure Rules.
59.Additionally, the Plaintiff/Applicant has also failed to depone to any of the named grounds in the Supporting affidavit.
60.Worse still, even during the submissions and despite enquiry from the court, counsel was unable to point out which ground same was relying upon, to pursue the Application for review.
61.To my mind, it behooved the Plaintiff/Applicant to implead a specific ground and thereafter endeavor to prove or establish same.
62.Without having impleaded any of the named grounds provided for and captured under the provisions of Order 45 of the Civil Procedure Rules, it is common knowledge that the Plaintiff/Applicant could therefore not be allowed to ventilate a claim for review.
63.To this end, it is imperative to restate and reiterate the established position of the law that Parties are bound by their pleadings. Consequently, if a party does not implead a particular cause of action or issue, then same cannot seek to prove the un-pleaded claim/issue, either by way of evidence or submissions.
64.Without belaboring the doctrine of departure and the rule of law that parties are bound by their pleadings (in this case the contents of the notice of motion), it is appropriate to refer to the holding of the court in the case of Independent Electoral and Boundaries Commission & another v Stephen Mutinda Mule & 3 others  eKLR, where the Court of Appeal observed as hereunder;Other judges on the case expressed themselves in similar terms, with Judge Christopher Mitchell JSC rendering himself thus;
65.Secondly, there is also the issue that during and in the course of ventilating the application for adjournment, counsel relied upon the issue of the Plaintiff’s witness having encountered or had a family/domestic emergency.
66.Suffice it to point out that counsel for the Plaintiff/applicant was not able to divulge the nature and details of the impugned family emergency.
67.Be that as it may, it is appropriate to state that the Honourable court considered and dealt with the stated reason for adjournment and the court came to the conclusion that the reason espoused was neither convincing nor credible.
68.Consequently, the court proceeded to and rendered a conscious and deliberate determination on the impugned issue. For clarity, the court dismissed the Application for adjournment.
69.Notwithstanding the foregoing, the plaintiff/applicant has now revisited the same issue and same is seeking to use the impugned ground as a basis for review.
70.Consequently and in the premises, the question that must be addressed and resolved is whether an issue that was canvassed and ventilated before the court and was thereafter disposed of, can be revisited under the guise of review.
71.In my humble view, once a court has calibrated on a particular issue and made a conscious and deliberate finding thereon, the court can not be re-invited to have a second bite on the same issue.
72.Certainly, to do so would be tantamount to inviting the court to overrule him/ herself and effectively to sit on appeal on its own decision.
73.In this regard, I must underscore that the invite by the plaintiff/applicant is not only misconceived but is legally untenable.
76.Guided by the holdings and observations alluded to in the cited decisions, I find and hold that the issues being re-agitated at the foot of the current Application do not fall within the established scope and tenor for review.
77.Notwithstanding the foregoing, I must also mention that even after a duration of more than 14 days from the time when the suit was dismissed, the plaintiff/applicant has neither attached nor exhibited any medical evidence to vindicate the impugned allegation that the son of the witness was taken ill.
78.Clearly, the plaintiff/applicant is not taking the subject matter seriously and seems to be keen on playing lottery with the due process of the court.
79.Overally, I am not persuaded that a basis has been established and proven to warrant the relief sought.