Phineas Isaiah Nyaga v Charles Njagi Ireri [2018] KEELC 2218 (KLR)

The earlier application sought revival of a suit said to have abated and substitution of deceased parties under Order 24. The court dismissed it because the suit had not abated but had been dismissed, and no prayer for setting aside was made. Since setting aside the dismissal order was neither canvassed nor determined earlier, section 7 of the Civil Procedure Act does not bar the present application.

Abuse of process involves improper use of court process. Seeking reinstatement of a dismissed suit on the basis of ignorance of material facts is not misuse. Further, a notice of appeal is merely an expression of intention requiring further steps under the Court of Appeal Rules; a party who does nothing more has no pending appeal and may properly pursue review.

The dismissal was made in default of attendance by both counsels. The court has discretion to set aside default orders to do justice between the parties, guided by Mbogo v Shah: the discretion is to avoid injustice from accident, inadvertence or excusable mistake, not to assist those who deliberately obstruct or delay justice. No mischief, ulterior motive or irremediable prejudice was demonstrated.

The Applicants failed to show a mistake apparent on the face of the record, discovery of new and important matter, or any other sufficient reason. The court agreed with the Respondent that review was unmerited but disagreed with her narrower reading of 'any other sufficient cause' as restricted to the preceding grounds.

Although the Applicants made a false start by seeking revival of the suit, that does not prejudice their right to move the court appropriately once the dismissal order is set aside. Consistent with the Burhani Decorators principle that an advocate's blunder should not be visited on the client, substitution was granted to enable a hearing on the merits.