1.By notice of motion dated May 24, 2022 brought pursuant to section 1A, 1B and 3A of Civil Procedure Act and order 1 rule 10(2) of the Civil Procedure Rules and all other enabling provisions of the law.
2.The applicants pray to be struck out from the appeal and costs of the application be borne by the 1st and 2nd respondents based on the following six (6) grounds: -a.That the appeal herein was filed by the 1st and 2nd respondents on 29th February 2021 who erroneously enjoined the 1st and 2nd applicants as the 2nd and 3rd respondents therein;b.That the 3rd respondent’s herein had consensually withdrawn the suit as against the 1st and 2nd applicants in the trial court in the presence of the 1st and 2nd respondents who did not object to the suit withdrawn and from that day there have been no existing/pending claim against the 1st and 2nd applicants;c.That judgement in the trial court was delivered in favour of the 3rd respondents against the 1st and 2nd respondents who were the owners and insured of the 3rd party motor vehicle;d.That the 1st and 2nd applicants are therefore non-suited to be enjoined as parties herein for determination of the appeal which they are not party to;e.That it is only appropriate that the application is allowed and the 1st and 2nd applicants are struck out the appeal;f.That this honorable court has unfettered discretion to order for striking out where justice of the demands;g.That I urge this honorable court to strike out the 1st and 2nd applicants from the suit with costs to the 1st and 2nd respondents; andh.That in the premises it is only fair and in the wider interest of justice that the 1st and 2nd applicants be struck out from the appeal.
3.The respondent on June 23, 2023 filed a replying affidavit in opposition to the application, sworn by Sonia Aguko Advocate dated June 20, 2022.
4.Directions for hearing and disposal of the application by written submissions was given on the October 27, 2022 and the applicant complied with the directions and filed its written submissions on the December 8, 2022.
5.The matter came up before court for directions on the February 16, 2023 where the respondent sought leave to file its written submissions and craved to be served the applicant written submissions and the same was allowed with the 1st and 2nd respondents being allowed seven (7) days to file and serve its written submissions.
6.The matter came up for mention on the March 14, 2023 and the 1st and 2nd respondents had not filed their written submission’s and were absent for the mention and the court reserved the matter for a ruling.
7.The 1st and 2nd respondents elected not to file any written submissions despite repeated opportunities available and the court thus proceeded without the same.
8.It is noteworthy that the 3rd respondent participated without filing any pleadings and submission specifically to the application but the court relies on the 3rd respondent’s replying affidavit dated January 21, 2022 that was in response to the 1st and 2nd respondents application for stay of execution of judgment in Molo CMCC No 368 of 2018.
9.It is further noteworthy that, the substratum forming the appeal is aggrievement of a ruling by the trial court setting condition of stay pending appeal and that 1st and 2nd respondents openly admit to filing two (2) appeals with High Court civil appeal No 12 being an appeal against judgment on quantum alone.
10.The applicants submit that the issue for determination is: -a.Whether the 1st and 2nd applicants should be struck out from the instant suit appeal
11.That the instant appeal arises from Molo CMCC No 386 of 2018 wherein the 3rd respondent sought for damages as against the applicants and the 1st and 2nd respondents as defendants respectively that the matter proceeded and on November 12, 2019 parties recorded a consent that the suit against the applicants be withdrawn and judgement on liability be entered in the ratio of 5:95% in favor of the 3rd respondent as against the 1st and 2nd respondents. That the said consent was recorded in the presence of the 1st and 2nd respondents who did not object to the suit being withdrawn and from that day there have been no existing/pending claim against the applicants.
12.That in consequence the matter proceeded for assessment of damages and was concluded and judgement delivered on February 16, 2021 in favor of the 3rd respondent as against the 1st and 2nd respondents.
13.In the circumstances that the applicants are non- suited to be enjoined as parties for determination of appeal which they are not party to notably the appeal in Nakuru HCCA 12 of 2021 is purely on quantum as parties had consented on liability.
14.In the premises it is only appropriate that the application be allowed and the 1st and 2nd applicants be struck-out from the appeal with costs.
15.The applicants urge the court to be guided by the provisions of order 1 rule 10 (2) of the Civil Procedure Rules which provides that: -
17.Most importantly that no objection was raised by the 1st and 2nd respondent. Consequently, that the 1st and 2nd respondent preferred an appeal against the court's judgement on quantum. The 1st and 2nd respondent also preferred an application for review seeking to set aside the consent on liability. However, the court vide its ruling dated August 24, 2021 dismissed the said application for review.
18.The applicants urge this court to find that the consequent to the consent judgement on liability and the subsequent judgment of the court that the 1st and 2nd applicants were exonerated from the suit and are therefore not parties to the subject appeal. And that it is therefore prudent that this court strikes out the 1st and 2nd applicants from the instant appeal. There stands no issue for determination between the applicants and the respondents in the instant appeal as the judgement only pertains the respondents. As such that the applicants are not necessary parties to the suit and they ought to be struck out of the instant appeal.
20.The applicants submit that it is only proper that the court strikes them out of the instant appeal as the judgment was only against the 1" and 2nd respondent and as such that they have no business in the appeal.
21.The decision whether or not to set aside judgement, is discretionary is and discretion is intended so to be exercised to avoid injustice and hardship resulting from accident, inadvertence or excusable mistake or error, but is not designed to assist a person who has deliberately sought whether by evasion or otherwise to obstruct or delay the course of justice. See Shah v Mbogo & another  EA 116.
22.In Pindoria Construction Ltd v Ironmongers Sanytaryware civil appeal No 16 of 1976 it was held that: -
23.The first question for determination is whether the judgement was procedurally entered. As stated hereinabove, the court had issued notice parties obliged Miss Guko advocate for the applicant appeared and attempted unsuccessfully to “show cause”.
24.Mr Gekonga advocate had urged that the delay was unjustifiable and prejudiced the estate of the deceased in enjoying the fruits of its judgment he urged the court to dismiss the appeal.
25.The court exercised its discretion in dismissing the appeal and awarded costs.
26.Order 17, rule 2 provides for notice to show cause why suit should not be dismissed.(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 bfit 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.Order 17, rule 3. Provides for the procedure if parties fail to appear on day fixed.3.Where, on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear, the court may proceed to dispose of the suit in one of the modes directed in that behalf by order 12, or make such other order as it thinks fit.Order 17, rule 4. Empowers the court to proceed notwithstanding either party fails to produce evidence.4.Where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit, for which time has been allowed, the court may, notwithstanding such default, proceed to decide the suit forthwith.
28.The applicant equally sought reliance on the case of Joseph Kinyua v G .O Ombachi (2019) eKLR that dismissal of suits is a draconian act.
29.Order 12 rule 7 of the Civil Procedure Rules, 2010 donates to this court the discretion to set aside its orders where judgment has been entered or the suit has been dismissed and that the decision whether to reinstate a suit and the legal test to be met has been discussed in various cases, reference being made to the case of Wanjiku Kamau v Tabitha Kamau & 3 others  eKLR where it was held that: -
30.In the case of Patel v E.A Cargo Handling Services Ltd  EA 75 at page 76 C and E where the court held that: -
31.The respondent urged for dismissal of the application as being an abuse of the process of the court and that the dismissal was pursuant to a hearing in with the appellant participated
32.I have considered the application herein, the affidavits in support thereof and the submissions filed.
33.There is no doubt that this court has the power to grant an order reinstating a dismissed suit as was appreciated by the Court of Appeal in Murtaza Hussein Bandali T/A Shimoni Enterprises v P. A Wills  KLR 469; [1988-92] where it was held that there is inherent power to restore a case for hearing after it has been dismissed.
34.However, the decision whether or not to reinstate a dismissed appeal is no doubt an exercise of discretion. This being an exercise of judicial discretion, like any other judicial discretion must be based on fixed principles and not on private opinions, sentiments and sympathy or benevolence but deservedly and not arbitrarily, whimsically or capriciously. The court’s discretion being judicial must therefore be exercised on the basis of evidence and sound legal principles, with the burden of disclosing the material falling squarely on the supplicant for such orders. See Gharib Mohamed Gharib v Zuleikha Mohamed Naaman civil application No Nai 4 of 1999.
35.In this case, the applicant’s case is that he was heard on the notice to show cause and seeks to regurgitate “showing cause” as a basis of the application. The decision by the learned Judge Kizito is not faulted and no material has been placed to show case if the decision was not judicious or was informed by mistake.
37.In arriving at my decision, I am, however, guided by the decision of the Court of Appeal in CMC Holdings Ltd v Nzioki  KLR 173 where it was held that: -
38.In considering whether or not to set aside the default judgement a judge has to judge the matter in the light of all the facts and circumstances both prior and subsequent and of the respective merits of the parties before it would be just and reasonable to set aside or vary the judgement, if necessary, upon terms to be imposed. Hence the justice of the matter and the good sense of the matter, are certainly matters for the judge. It is, as I have held elsewhere in this ruling an unfettered discretion, although it is to be used with reason, and so a regular judgement would not usually be set aside unless the court is satisfied that there is a defence on the merits, namely a prima facie defence which should go to trial or adjudication. The principle obviously is that, unless and until the court has pronounced a judgement upon the merits or by consent it is to have the power to invoke the expression of its coercive power, when that has been obtained only by a failure to follow any of the rules of procedure. While the Judge may not be satisfied with the blunders or inaction of the defendant or his advocate, nevertheless he may hold that it would be just to set aside the ex parte decision. See Bouchard International (Services) Ltd v M’mwereria  KLR 193; Evans v Bartlam  2 All ER 647.
39.Considering all the circumstances of this case I am unsatisfied that any materials are placed before the court warranting reinstatement of the dismissed appeal.
40.No material has been placed before the court warranting consolidation HCCA E095/2021 together with this appeal.
41.I have said enough to show that I find no merit in the notice of motion dated February 9, 2023.
42.Accordingly, application to set-aside the order dismissing this suit and reinstate the same is dismissed for want of merit.
43.The costs of this application are awarded to the respondent.
44.It is so ordered.