1.The 1st Plaintiff has filed a Notice of Motion application dated April 25, 2022, in which it has sought for the following orders:a.Thishonourable court does review the orders issued on November 8, 2022.b.1st plaintiff’s Advocates be readmitted to the record and the Amended Plaint dated September 25, 2019 be reinstated for hearing.c.Costs of this application.
2.The application is premised on the grounds on the face of the application and the supporting affidavit sworn by the 1st plaintiff’s advocate who deposed that he filed a Chamber Summons application dated July 18, 2022 seeking leave to cease acting for the 1st plaintiff on the ground that he did not have instructions to continue acting in the matter, and that on the morning of November 8, 2022, Mr. Isaac Sila, the Chief Executive Officer of the 1st plaintiff, requested him to continue acting for the 1st plaintiff.
3.The 1st plaintiff’s counsel deponed that their counsel, Ms. Jacinta Ndanu Martha, was unaware of these developments and failed to relay these instructions and to withdraw the application to cease acting and that consequently, this court issued orders allowing the 1st plaintiff’s advocate to cease acting and dismissed the 1st plaintiff’s suit for want of prosecution.
4.It was deposed that the 1st plaintiff’s advocates have learnt that the Chamber Summons dated July 18, 2022 for leave to cease acting was not served upon the 1st plaintiff nor was an affidavit of service filed and that this represents an error apparent on the face of the record.
5.The 1st plaintiff’s advocate deponed that the foregoing was occasioned by errors and/mistakes for which the 1st plaintiff was not privy to; that had the 1st plaintiff been aware in good time that its advocates intended to cease acting, it would probably have instructed an alternative counsel or appeared in court in person and that the 1st plaintiff has not lost interest in the suit and is ready to proceed with the hearing in accordance with this court’s directions.
6.The 1st defendant opposed the application vide a replying affidavit sworn by its Corporation Secretary and Head of Legal Services, who deponed that the application dated July 18, 2022 was not served until November 7, 2022, a day before the hearing date of the main suit; that the 1st plaintiff’s Advocates failed to represent the 1st plaintiff when the matter came up for mention on November 21, 2021, February 22, 2022 and May 9, 2022 and that on May 23, 2022, when the matter came up for mention to certify it ready for hearing, the 1st plaintiff’s advocate intimated to the court that it did not have instructions to continue acting for the 1st plaintiff.
7.The 1st defendant’s Corporation Secretary deponed that the matters sought to be explained do not constitute errors and/or mistakes that would warrant a review but rather, a deliberate and intentional disinterest which led to the dismissal orders and that the 1st plaintiff itself has not sworn an affidavit to demonstrate that it has an interest in the suit.
8.It was deposed that this suit was not dismissed on account of cessation or lack of representation by Counsel but by the fact that no credible reason had been given why the 1st plaintiff was not available to prosecute its suit. It was deponed that any further delay in the conclusion of this matter is prejudicial to the 1st defendant.
9.No submissions were filed by the parties.
Analysis and Determination
10.This court has considered the application and the response filed by the 1st defendant. The issue before this court for determination is whether the orders issued by this court on November 8, 2022 should be reviewed.
11.The record shows that the 1st plaintiff’s Advocates filed an application dated July 18, 2022 seeking to cease acting for the 1st plaintiff. The court allowed the application on November 8, 2022 and because the 1st plaintiff was not in court, the court dismissed its suit for want of prosecution.
12.The 1st plaintiff’s Advocate has deposed that these orders were entered erroneously because on the morning of November 8, 2022, he had received instructions from his client to continue representing it; that the mistake he made was in failing to relay these instructions to their counsel, Ms. Jacinta Ndanu Martha and that further, the application dated July 18, 2022 was not duly served on the 1st plaintiff.
16.From these provisions, the grounds upon which an application for review may be granted are: (a) discovery of new and important evidence which was not within the knowledge of the applicant or could not be produced at the time the orders were passed; (b) on account of a mistake or error apparent on the face of the record or (c) for any other sufficient reason. This position was upheld in Republic v Public Procurement Administrative Review Board & 2 others  eKLR as follows:
17.The 1st plaintiff has sought a review of the orders of this court on the ground that there is a mistake or error on the face of the record. In Muyodi v Industrial and Commercial Development Corporation & another  1 EA 243, the Court of Appeal described an error apparent on the face of the record as follows:
20.This court is duly guided by the foregoing decisions. In this case, the plaintiff has claimed that there are two errors or mistake on the face of the record: first that the plaintiff’s counsel was not aware that the plaintiff had issued instructions on the morning of November 8, 2022and secondly, that the 1st plaintiff was not served with the application by its advocates seeking to cease acting. By their nature, these errors constitute errors by the 1st plaintiff rather than errors by the court.
21.Thedefendant has deponed that the 1st plaintiff has not been a diligent litigant. This court agrees. Looking at the record, the 1st plaintiff has failed to prosecute its suit diligently. While there were instances when the parties herein were engaged in out of court negotiations, the 1st plaintiff failed to issue instructions to its advocates accordingly such as when the matter came up for mention on November 21, 2021, February 22, 2022 and May 9, 2022.
23.The attempts by the 1st plaintiff to issue instructions on the morning of November 8, 2022, if at all, when the application by its advocate to cease acting was to be heard, is indeed a distinct coincidence. Could it really be argued that the 1st plaintiff was not aware of the application before this court? It is doubtful.
24.This court is not persuaded that there is any error on the face of the record. The 1st plaintiff or its advocate has failed to prove that this court exercised its discretion or authority erroneously or whimsically or that this court arrived at a wrong decision.
25.On this basis, this court finds the plaintiff’s application dated April 25, 2022to be unmeritorious. The application is dismissed with costs to the defendants.