Jane Wanjiru Wangari & 2 others v Kenya Railways Staff Retirement Benefits Scheme

by the afidavit sworn by the plaintifis’ advocate Nelson Havi on November 11, 2019 was brought on several grounds. The plaintifis contended that they had learnt that this suit was dismissed for nonattendance on June 18, 2019. The plaintifis averred that their advocates inadvertently failed to attend court on June 18, 2019 when the suit came up for hearing. The plaintifis averred that the hearing date was fixed by the court in the absence of the plaintifis’ advocates and in the presence of the defendant’s advocates who were directed by the court to serve a hearing notice upon the plaintifis’ advocates. 5. The plaintifis averred that the defendant’s advocates failed to serve the plaintifis’ advocates with a hearing notice for the hearing that was to take place on June 18, 2019. The plaintifis averred that that was the reason why the plaintifis and their advocates failed to attend court on June 18, 2019. The plaintifis averred that their failure to attend court was not intentional as they were not aware of the hearing date. 6. The application was opposed by the defendant through grounds of opposition dated October 1, 2021 and a replying afidavit sworn by Stanley Gitari on October 4, 2021. The defendant contended that the reasons given by the plaintifis for their failure to attend court on June 18, 2019 were not factually correct. The defendant averred that on February 28, 2018 when the suit was fixed for hearing on June 18, 2019 it was the plaintifis’ advocate who was present in court and who was directed to serve the defendant’s advocates with a hearing notice. The defendant averred that it was as a result of the plaintifis’ failure to serve the defendant’s advocates with a hearing notice and to attend court that led to the dismissal of the suit when it came up for hearing on June 18, 2019 as none of the parties was in attendance. The defendant averred that the plaintifis’ application was brought after a delay of over 5 months which delay was not explained. The defendant termed the application misconceived and an abuse of the process of the court. 7. The application was argued on October 4, 2021 when Mr. Havi appeared for the plaintifis while Ms. Kavagi appeared for the defendant. In their submissions, the advocates for the parties reiterated the contents of the afidavits and grounds of opposition filed in support of and in opposition to the application which I have highlighted above. Mr. Havi urged the court to exercise its discretion in favour of granting the orders sought. On the other hand, Ms. Kavagi urged the court to dismiss the application. 8. I have considered the plaintifis’ application. I have also considered the afidavit and grounds of opposition filed by the defendant in opposition thereto. Finally, I have considered the submissions by the advocates for the parties. What I need to determine is whether valid grounds have been put forward to warrant the setting aside of the order made herein on June 18, 2019 dismissing this suit for nonattendance. 9. There is no dispute that the court has power to reinstate a suit that has been dismissed for nonattendance. The power is however discretionary. An applicant seeking reinstatement of a suit has to satisfy the court that he deserves the exercise of the court’s discretion. I have at the beginning of this ruling given the history of the dispute between the parties and the progress of the suit. From the evidence on record, I am satisfied that the hearing date of June 18, 2019 was fixed in court in the presence of the advocate for the plaintifis and that the said advocate was ordered by the court to ensure that the defendant’s advocates who were not present in court were served with a hearing notice. I am in agreement with the defendant that the version of what transpired in court given by the plaintifis is the opposite of what took place. That means that the plaintifis have not given an explanation why they failed to attend court on June 18, 2019. I am also in agreement with the defendant that a delay of 5 months before filing an application for reinstatement of a dismissed suit is inordinate. The plaintifis did not tell the court when they learnt that the suit had been dismissed. The delay was therefore not explained. https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2504/eng@2022-07-07 2

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10. That said, I have noted that the plaintifis’ advocates had attended court faithfully on all the previous occasions when the matter was fixed for hearing save for June 18, 2019. This is an indication that the plaintifis had not lost interest in the suit. There is also no evidence on record that the plaintifis had attempted at any time in the course of the proceedings in this suit to delay or to frustrate the prosecution of the suit. As I have stated earlier, there is no reasonable explanation given by the plaintifis for their failure to attend court on June 18, 2019 and why it took them 5 months to file the present application for reinstatement of the suit. These factors alone in my view cannot fetter the court’s discretion under Order 12 Rule 7 of the Civil Procedure Rules. In Nchapi Leiyagu v I.E.B.C & 2 others [2013] eKLR, the court stated that: “ The right to a hearing has always been a well-protected right in our Constitution and is also the cornerstone of the rule of law. This is why even if the courts have inherent power to dismiss suits this should be done in circumstances that protect the integrity of the court process from abuse that would amount to injustice and at the end of the day, there should be proportionality.” 11. In Philip Chemwolo & another v Augustine Kubede [1982-88] KAR 1033 at 1040, Apaloo J.A. Stated as follows: “ Blunder will always be made from time to time and it does not follow that because a mistake has been made that a party should sufier the penalty of not having his case heard on merit. I think the broad equity approach to this matter is that unless there is a fraud or intention to overreach, there is no error or default that cannot be put right by payment of costs. The court is as often said exists for the purpose of deciding the rights of the parties and not for the purpose of imposing discipline.” 12. Due to the nature of the dispute between the parties and the fact that the plaintifis have demonstrated that they are still interested in prosecuting the suit, I am inclined to give the plaintifis a chance to prosecute this suit. I am not persuaded that the defendant would sufier prejudice that cannot be put right by payment of costs. 14. In conclusion, I find merit in the Notice of Motion application dated November 11, 2019. The orders made on 18th June 2019 dismissing this suit for non-attendance with costs are set aside and the suit reinstated for hearing on merit. The defendant shall have the costs of the application assessed at Kshs. 20,000/- payable forthwith and in any event before the next hearing date. DELIVERED AND DATED THIS 7TH DAY OF JULY 2022 S. OKONG’O JUDGE Ruling delivered virtually through Microsoft Teams Video Conferencing Platform in the presence of; N/A for the Plaintifis N/A for the Defendants Ms. C.Nyokabi-Court Assistant https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2504/eng@2022-07-07 3

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