Ombachi v Karanja & another (Environment & Land Case 65 of 2018)  KEELC 16330 (KLR) (16 March 2023) (Ruling)
Neutral citation:  KEELC 16330 (KLR)
Republic of Kenya
Environment & Land Case 65 of 2018
FM Njoroge, J
March 16, 2023
Agnes Moraa Ombachi
Beatrice Muthoni Karanja
Nicholas Gitau Karanja
1.This is a ruling in respect of the plaintiff/applicant’s notice of motion application dated December 14, 2022 seeking the following orders:1.Spent.2.Spent.
3.That this honorable court be pleased to set aside/stay the orders issued on the November 16, 2022 dismissing this suit for want of prosecution and also set aside all the consequential orders emanating therefrom.4.That this honourable court be pleased to reinstate the plaintiff’s suit and the same be heard on merit.5.Costs of this application be provided for.
2.The application is supported by the affidavit of Richard M Machage the plaintiff’s advocate, sworn on December 14, 2022. He deposed that the matter was listed for hearing on November 16, 2022; that they had closed their offices on November 10, 2022 as usual; that when they reported to work the following day at 7.00am they found their offices locked with 3 padlocks; that upon enquiry they established that one Mr Robert Kirui was the one who had locked the said office; that upon requesting him to open the office he refused despite not being their landlord; that he rushed to the Business Premises Rent Tribunal seeking a mandatory order against Mr Kirui to open the office which was issued; that despite the order being served upon Mr Kirui and his Advocates, they still refused to open until November 21, 2022 when the police intervened which was when he managed to gain access; that all the while he had been unable to attend to his matters since he did not have his diary nor his clients’ files; that he later learnt that his client had attended court but was unable to follow the proceedings when the suit was dismissed; that it would be fair and just that the application be allowed.
3.The defendants/respondents did not file any response to the application.
4.There are no submissions on record filed by any of the parties.
Analysis And Determination
5.This court has considered the application and supporting affidavit and the only issue for determination is whether the plaintiff/applicant’s case ought to be reinstated.
6.Order 17 rule 2 of the Civil Procedure Rules, provides that:1.“In any suit in which no application has been made or step taken by either party for one year, the court may give notice in writing to the parties to show cause why the suit dismissed, and if cause is not shown to its satisfaction, may dismiss the suit.2.If cause is shown to the satisfaction of the court it may make such orders as it thinks fit to obtain expeditious hearing of the suit.3.Any party to the suit may apply for its dismissal as provided in sub-rule 1.4.The court may dismiss the suit for non-compliance with any direction given under this order.”
7.Besides the situations provided for in order 17, it is normal for the court to also dismiss a suit for want of prosecution when the claimant fails to turn up at the hearing. It is trite law that the power to dismiss a suit for want of prosecution is at the discretion of the court. In Nilesh Premchand Mulji Shah & Another t/a Ketan Emporium v M.D Popat and others & another  eKLR, the court stated as follows:
8.According to the court records, this matter came up for hearing on November 16, 2022. The defendant/respondent’s advocate was present but the plaintiff was absent. The defendant/respondent’s advocate requested the court to have the matter dismissed for want of prosecution for the reason that the said date had been fixed by consent.
9.The court noted the same and proceeded to dismiss the suit for want of prosecution with costs. The plaintiff/applicant has filed the instant application and alluded to the fact that he was unable to attend court on the said date of hearing as his office had been closed. He explained that he did not have access to his clients’ file and therefore urged this court to set aside the orders made on November 16, 2022 and reinstate the suit.
10.The Court of Appeal in Tana and Athi Rivers Development Authority v Jeremiah Kimigho Mwakio & 3 others  eKLR considered the duty that advocates owe to the court:
11.In the present case the unfortunate circumstances that befall Mr Machage fall beyond the category of “mistake” as defined in the case law cited herein above. In this court’s view they are more readily excusable than a mistake and require less scrutiny of this court. Having carefully considered the application, the facts before me and relying on the legal provisions cited above, I find that the plaintiff/applicant’s application has merit.
12.In view of the foregoing, I find the instant notice of motion dated December 14, 2022 is merited and I allow it. I further proceed to make the following final orders:a.That the orders of this court made on November 16, 2022 dismissing the plaintiff/applicant’s case are hereby set aside;b.That the plaintiff/applicant’s suit be and is hereby reinstated for hearing on its merits;c.The plaintiff/applicant shall set down this suit for hearing on its merits within 30 days from the date hereof;d.The costs of the application in the cause.
DATED, SIGNED AND DELIVERED AT NAKURU VIA ELECTRONIC MAIL ON THIS 16TH DAY OF MARCH 2023.MWANGI NJOROGEJUDGE, ELC, NAKURU