III. Analysis and Determination
7.I have keenly assessed and considered the filed pleadings by the 1st, 2nd, 4th & 5th Plaintiffs/Applicants herein, the relevant provisions of the Constitution of Kenya, 2010 and the statures.
8.In order to reach an informed, reasonable and just decision in the subject matter, the Honourable Court has crafted the following two (2) issues for its determination. These are:-a.Whether the Notice of Notiin Application dated 21st November, 2022 by the 1st, 2nd, 4th & 5th Plaintiffss/Applicants herein has any merit and whther the parties are entitiled to any reliefs sought.b.Who will bear the Costs of the application.ISSUE No. a). Whether the Notice of Notiin Application dated 21st November, 2022 by the 1st, 2nd, 4th & 5th Plaintiffss/Applicants herein has any merit and whther the parties are entitiled to any reliefs sought.
9.Under this Sub – heading, the main substratum of the matter is setting aside Court orders dismissing a for non attendance and want of prosecution by parties thereof and causing it to be reinstated. The facts of this matter are rather straight forward. On 25th October, 2022, this suit having been slated for hearing by the Consensus of the parties but the Advocate for the Plaintiffs hailing to turn up nor send a representative, this Honourable Court proceeded to dismiss the Plaintiffs’ suit against the Defendants for non-attendance under the provision of Order 12 Rule 1 and for want of prosecution under the provision of Order 17 Rule 1 & 3 of the Civil Procedure Rules, 2010 with costs to the Defendants. Pursuant to that, the matter proceeded for the hearing of the Counter Claim by the Defendants.
10.Legally speaking, the relevant law governing setting aside judgment or dismissal is under the provision of Order 12 Rule 7 of the Civil Procedure Rules, 2010. It provides as follows:
11.The decision of whether to or not to allow an application for setting aside Judgment or an order for dismissal of a suit due to non-attendance of a Plaintiff is within the wide discretion of the court. This discretion has to be exercised judiciously, as was stated the case of “Shah – Versus - Mbogo (1979) EA 116 quoted with approval in the case of John Mukuha Mburu v Charles Mwenga Mburu  eKLR, where that court held thus:
12.For the Court to exercise its discretion in favour of the Applicant, he or she has satisfy it that there is sufficient cause or reason to warrant it to be put into use in setting aside the order of dismissal and subsequently reinstate the suit. Sufficient Cause was defined by the Supreme Court of India in the case of:- “Parimal – Versus - Veena which was cited with approval in the case of “Wachira Karani – Versus - Bildad Wachira  eKLR. In the case, the said Supreme Court stated that:-
13.In the instant case, the Plaintiffs/Applicants claimed that the suit was dismissed for want of prosecution for non-attendance on the date of hearing. They have indicated the Learned Counsel handling the matter and being a Coast representative of FIDA – KENYA had to attend an urgent Board meeting. Further, that she called to inform her Colleague of her predicament but her clients attended Court but could not persuade the Court. With due respect, this is a misconception. The Rules do not provide for dismissal of a suit for want of prosecution on a date it is set down for hearing. Instead they provide for dismissal on account of non-attendance of a Plaintiff or a Defendant who has a counter-claim for that matter. Thus, to set the record straight, the way I understand the facts and the record herein is that the suit was dismissed for non-attendance of both the Plaintiffs and their learned counsel on the date of hearing (of their case).
14.As indicated earlier, the merits or otherwise of the issue of the Advocate not attending court due to her position in FIDA- Kenya are considered by the Court and found wanting. In case the Applicant was dissatisfied with the findings of the Court on them she should have appealed against the decision of this Court. I take note that on different occasion it is not the said Deponent of the affidavit in support of this suit that appeared before Court but always send representatives. Therefore the Advocate had the choice to have someone hold her brief as it has now become a common norm and practise when she realized that she may not be able to attend the court herself or rather appear before court and seek an adjournment. I am however also concerned that the Learned Counsel for the Plaintiffs has claimed to have talked to the Defendants’ Counsel about her dilemma information which was not relied to the court or the Honourable Court has not had the pleasure to examine due to there being a reply. I wonder the reason she never thought it wise to have written to her and copied to Court. Clearly, there was great and inexcusable lethargy and negligence on the part of the Advocate for the Plaintiffs. I am still surprised in the manner she took these matters of Court so causually.
15.Be that as it may, on the court’s discretion under the provision of Order 12 Rule 7 Civil Procedure Rules, 2010 the Honourable court is guided by the case of “Richard Ncharpi Leiyagu – Versus - IEBC & 2 Others  on the proposition that the discretion to set aside an exparte order is intended to avoid injustice, inadvertence or inexcusable mistake or error.That the court has powers to dismiss a suit or an application for non-prosecution/non-attendance is not in dispute as provided under Order 12 Civil Procedure Rules.
16.It’s not in dispute that tThe Plaintiffs/Applicants were all along aware of the hearing date. The cause list had been published at least 7 days before the hearing date and the Plaintiffs/Applicants knew that the matter was the first one in the cause list. The court has no obligation to make enquires why a party has not appeared in court on time or at all. See the case of “Solomon Ouko Onyango –Versus - Amedo Centre (K) Ltd.  eKLR.
17.Under the provision of Order 12 Rule 7, the court has discretion to set aside, recall and or reinstate a suit or application dismissed for non-prosecution or no-attendance.In the “John Nahashon Mwangi – Versus - Kenya Finance Bank Limited (in Liquidation) [2015 eKLR, the Court held that:-
18.The question herein is whether the Plaintiffs/Applicants herein have demonstrated reasonable grounds for the reinstatement of the suit and whether the Defendants/Respondents will suffer prejudice if the suit was reinstated. The court’s main mandate is to do justice to parties and must exercise the discretion judiciously to avoid injustice resulting from accident, inadvertence or excusable mistake. It is trite law the discretion is to be exercised not in a design of assisting a person who has deliberately sought to obstruct the court of justice.
19.The Applicant’s counsel contends that her the Plaintiffs should not suffer as a result of her misdoing as she was not able to attend court on that day due to the fact that she is the Current Coast Representative of FIDA-KENYA and she had been invited to an urgent Board Meeting scheduled in Nairobi for the 25th October, 2022 and out of courtesy called and informed the Defendants’ advocate on record explaining to her the circumstances she was in.
20.Suffice it to say, and giving the parties a benefit of doubt, by the end of the day, I am compelled to refer to the case of “Belinda Murai & Others – Versus - Amos Wainaina (1979) eKLR, Madan J as he then was, it was held mistakes of a legal adviser may amount to sufficient cause. While dealing with an issue relating to a mistake made by a lawyer, Court stated thus:-
21.Further, the Plaintiffs/Applicants contended that if the suit was not reinstated, they would be condemned unheard and that they would suffer grave injustice and prejudice. I reiterated that the provision of Articles 25 ( c ), 47, 48 and 50 (1) & (2) of the Constitution of Kenya, 2010 guarantees every Kenya right to access to justice and fair hearing. Article 159 requires that justice shall be administered without undue regard to technicalities whereas Sections 3, 4, 13 and 19 of the Environment and Land Court Act, No. 19 of 2011 as read together with Sections 1A, 1B and 3A of the Civil Procedure Act, cap. 21 expects the court to strive towards substantive justice and where the Courts should facilitate the expeditious, proportionate, Just and accessible resolution of disputes. See the case of “Lochab Bros Ltd – Versus - Peter Karuma T/A Lumumba, Lumumba Advocates  eKLR.
22.All said and done, looking at the totality of the circumstances in this matter, my considered view is the route of lesser risk of injustice is to allow the application otherwise the Plaintiffs/Applicants would be more prejudiced if denied a chance to prosecute the application dated 21st November, 2022.See the case of “Gladys Njeri Kirugumi – Versus - Langata Development Co. Ltd & Another  eKLR & Films Rover International Ltd. – Vrsus - Cannon Film Sales Ltd.,  3 All E.R. 772.ISSUE No. Who is to bear the Costs of the application?
23.It is trite Law that that issues of Costs is at the discretion of the Court. Costs mean awarded granted to a party at the conclusion of the legal action or proceedings. The proviso of Section 27 ( 1 ) of the Civil Procedure Rules, 2010 hold that costs follow the event. By events here means the results or outcome of the said legal action or proceedings.
24.In the instant case, although the application by the Plaintiffs/Applicants to setaside cout’s orders and reinstate the suit has been allowed, the Court takes cognisance of the trouble the Defendants have had to go through in Defending their case and the Counter Claim and also having to proceeded on once again in matter at the instance of the Plaintiss/Applicants they had known was closed. They are entitled to costs and some thown away costs to be borne by the Plaintiffs/Applicants herein.