1.Before this court for determination is a notice of motion application dated April 28, 2022 filed in court on May 8, 2022 by the 2nd applicant and which is expressed to be brought under Article 50 (1) of the Constitution, Sections 3A and 80 of the Civil Procedure Act and Order 45 (1) and Order 50 (5) of the Civil Procedure Rules seeking the following orders: -
2.That pending inter partes hearing and determination of this application there be a stay of execution of the decree herein plus all consequential orders.
3.That the honourable court be pleased to review the ruling delivered on the November 30, 2021 and its consequential orders hence reinstate this suit and hear it on priority basis for the interest of justice.
4.That the cost of this application be in the cause.
2.The application is premised on the grounds inter alia that the 1st plaintiff had an out of court settlement on account of the 2nd defendant and which claim was marked as settled. Also, that they were aware of the hearing date for the November 5, 2020 which they attended as required but due to the covid 19 pandemic protocols, they kept distance awaiting to be called but the 2nd applicant was surprised to learn that the suit had been struck out for non-attendance. Further, that the 2nd applicant engaged his counsel who filed an application for reinstatement and was surprised to learn that the same had been dismissed as well.
3.The application is supported by the affidavit of the 2nd applicant sworn on even date. The 2nd applicant deposed that on the date of the hearing which was on November 5, 2020, together with his witnesses, they were present in court and were asked to stay outside due to the covid 19 protocol. Further, that they knew that their advocate was to be in court having communicated the hearing date to them and as such, they were outside waiting for directions. The 2nd applicant further deposed that afterwards, they learnt that their suit had been dismissed for want of prosecution. Thereafter, they instructed counsel to file an application to set aside the order but they realised that the same was dismissed on November 30, 2021 whereas their advocate indicated that the ruling was still pending. Further, that their advocate on record had neglected their case which led to the dismissal for non-attendance.
4.The 1st respondent filed grounds of opposition dated May 30, 2022 in opposition to the application on the following grounds: -1.That the application is frivolous and an abuse of the court process and the same ought to be dismissed with costs to the 1st respondent.2.That no valid grounds have been advanced to review the orders of dismissal made by the honourable judge.3.That the orders sought cannot be granted as the court is now functus officio having pronounced its decision twice over the same subject matter.4.That the applicants are completely disinterested in the prosecution of this suit and the explanation offered is not plausible thus the application should be dismissed.5.That the applicant is guilty of laches as there has been inordinate delay in bringing the application to court.6.That reinstatement of the suit will prejudice the 1st respondent as the applicants have failed to prosecute their suit since it was filed before this court and the same contravenes the 1st respondent right for a fair trial under Article 50 of the Constitution.
5.The 3rd and 4th respondents filed a replying affidavit in opposition to the application which was sworn on September 19, 2022 by Mayiani Sankale-Advocate. The counsel deposed that the instant application is res judicata which has been fully heard and determined vide a ruling delivered on November 30, 2021 and is bad in law, vexatious and an abuse of the court process. The counsel further deposed that the hearing date for November 5, 2020 was taken by consent and on the said date, the applicants and their advocates were not present in court. Further, that the applicants had a duty to communicate with his advocate and if he was willing and ready to prosecute his case, he would have been vigilant and ensured that there was attendance on his part on the day of the hearing. As such, the suit was properly dismissed and the court acted within the law in dismissing the suit for non- attendance. The counsel further deposed that there is evidently no mistake or error on the face of the record to warrant review of the ruling delivered on November 30, 2021.
6.This court directed parties to file written submissions to dispose off the application. The 2nd applicant filed written submissions dated November 15, 2022.The 2nd applicant raised one issue for determination which is whether the instant application meets the legal threshold for an application to reinstate a suit. The 2nd applicant submitted that by dint of Order 12 Rule 7 of the Civil Procedure Rules, this court is clothed with sufficient jurisdiction to set aside the order dismissing the applicants’ suit. Further that the said power is discretionary but must be exercised in favour of substantive justice rather than procedural technicalities that would serve to drive a litigant out of the seat of justice as proposed by the 3rd and 4th respondents.
7.The 2nd applicant further submitted that the applicants’ counsel was unable to reach them to make the necessary arrangements to facilitate the travelling and attendance to court of counsel and the expected witnesses for hearing which was an unfortunate circumstance and the consequences of the same should not be visited upon an innocent client. Further that the reasons adduced constitute an excusable explanation as to non-attendance by counsel as well as the applicant’s who were within the court’s premises but who were subjected to Covid 19 protocols and for this reason, the applicant ought not to be denied an opportunity to have a hearing and a conclusive determination of this matter. The 2nd applicant relied on the cases of Mbogo & Another versus Shah EALR 1908, Githere versus Kimungul 1976-1985 EA 101 and Abdirahman Mohamed Abdi versus Safi Petroleum Products Limited & 6 Others, Civil Application No Nairobi 173 of 2010 and submitted that it will be an injustice to deny the applicants their opportunity to be heard.
8.The 2nd applicant further submitted that the 3rd and 4th respondents have a biased view of the proceedings whereas the conduct portrayed by the applicants’ show that they are indeed interested in prosecuting their suit and that the mistake of counsel cannot be meted out against his client. Reliance was placed in the case of Philip Chemwolo & Another versus Augustine Kubede (1982-88) KAR 103.
9.The respondents did not file written submissions. Be that as it may, I have analysed and considered the application, the grounds of opposition, replying affidavit and the written submissions filed by the 2nd applicant and the issue for determination is whether the 2nd applicant is entitled to the orders of review of the ruling delivered on November 30, 2021.
11.While Order 45 Rule 1(1) of the Civil Procedure Rules sets out the rules for review, Section 80 of the Civil Procedure Act provides for the power of review. It is therefore clear from the above that the Court’s jurisdiction in an application for review is circumscribed by the following: -
1.Discovery of new and important matter or evidence which, even after the exercise of due diligence, was not within the knowledge of the Applicant or could not be produced at the time the decree or order was made.
2.On account of some mistake or error apparent on the face of the record.
3.For any other sufficient reason.
4.The application must be filed without un – reasonable delay.
12.The application at hand is the subject of a ruling delivered by my brother Kullow J on November 30, 2021 in respect of notice of motion application dated November 9, 2020. For the instant application to survive, the 2nd applicant has to demonstrate error apparent on the record, discovery of new or important matter which he could not produce at the time the order was made or any other sufficient reason.
13.In my view, what the applicant has done is to replicate the notice of motion application dated November 9, 2020 and has also adduced to the same in his grounds in the instant application. In Republic v Advocates Disciplinary Tribunal Ex parte Apollo Mboya  eKLR Mativo J (as he then was) culled out the following principles from a number of authorities: -
14.The instant application is similar to the application dated November 9, 2020 and this court has no business interfering with the said decision as there is no discovery of new or important material, or sufficient reason advanced by the applicant for this court to consider otherwise.
15.As such, I find no merit in the notice of motion application dated April 28, 2022, the same is hereby dismissed. Each party to bear its own costs. It is so ordered.