13.The singular issue for determination is whether the applicant’s notice of motion dated 24th April, 2023 is merited.
14.This case has a chequered history.
15.The suit was filed on 7th October, 2015 by law firm of Nelson Harun & Co. Advocates but no action appear to have been taken place until a Chamber Summons was scheduled for hearing on 15th June, 2017 but was not heard for unrecorded reasons and was rescheduled for 9th May, 2018 when none of the parties attended and the suit was stood over generally until 28th March, 2019 when the suit was dismissed for want of prosecution.
16.Significantly by notice dated 26th April, 2022, the applicant notified the court that he intended to act in person.
17.Records reveal that on 9th June, 2022, a Chamber Summons application for reinstatement of the suit dated 9th March, 2022 was scheduled for hearing on 20th September, 2022 on which date the Claimant was represented by counsel. The Respondent was absent.
18.Directions were given on submissions, service and mention on 19th October, 2022 but the mention did not take place until 6th December, 2022 when the application for reinstatement was erroneously dismissed for want of prosecution.
19.The instant notice of motion was slated for hearing on 10th May, 2023 but the claimant was absent.
20.The court deferred the hearing to 31st May, 2023 and directed the respondent’s counsel to file its response and serve on WhatsApp and additionally serve hearing notice which counsel did and filed an affidavit of service.
21.On 31st May, 2023, none of the parties was present in court and hearing was again deferred to 19th July, 2023 but the court did not sit owing to the ELRASE Conference and hearing was again deferred to 18th September, 2023 on which date when the matter was called out, none of the parties was present and the file was placed aside to accommodate the Claimant.
22.At 10.02 am, counsel for the Respondent was present but the Claimant was not and the court again deferred the hearing to 16th October, 2023 when hearing of the Notice of Motion took place.
23.The foregoing chronology of events is essential to demonstrate how the Claimant has related to this matter since the suit was filed and more particularly after the Claimant started acting in person on 26th April, 2022.
24.Surprisingly, from 26th April, 2022 to 16th October, 2023, the Claimant was present in court on 20th December, 2022, February 2023, 10th April, 2023 and 16th October, 2023, a paltry 4 times out of 12 sessions.
25.Strangely, the Claimant provided no explanation as to why he has not prosecuted the Notice of Motion since April 2023.
26.It requires no gainsaying that the dismissal of a suit for want of prosecution is a drastic step and ought to be a last resort as it drives the party from the seat of judgement.
28.The principles governing reinstatement of a suit dismissed for want of prosecution are well settled.
29.Section 3A of the Civil Procedure Act gives the court extensive discretion over suits before it including whether or not to reinstate a suit dismissed for want of prosecution.
30.Section 3A provides that:
31.Needless to emphasize, whether or not to reinstate a suit involves the exercise of discretion by the court which must be exercised in accordance with the dictates of the law to ensure just, expeditious and efficient administration of substantive justice.
32.In Shah v Mbogo & another (1967) EA 116, Harris J. stated as follows;
34.In determining whether or not to exercise discretion in favour of the applicant for reinstatement, the court is required to balance the need to facilitate expeditious and efficient administration of substantive justice.
35.In this case, the applicant argues that on the date he was supposed to confirm the filing of submissions, he could not log into the portal due to technical hitches, but endeavoured to ascertain what had transpired and filed the instant Notice of Motion which in the court’s view is a sign of diligence in litigation.
36.Equally, the unexplained delay in the prosecution of the suit from 2015 to 2022 is for the most part attributable to the advocate who was handling the matter although the Claimant is also not free from blame.
38.Relatedly, a perusal of the statement of claim, annextures and the Respondent’s Memorandum of Defence would appear to show that the Claimant has an arguable case for unlawful termination of employment.
39.Finally, although the Respondent’s counsel urged that reinstatement of the suit would prejudice the Respondent immensely, the particulars of the prejudice were not canvassed.
40.In the court’s view, the Claimant stands to suffer more prejudice if the suit is not reinstated for hearing on merits as substantive justice demands.
41.In the upshot, it is the finding of the court that the Claimant/Applicant’s Notice of Motion dated 24th April, 2023 is merited and is granted as prayed save that parties shall bear own costs.