Ahero Supermarket Limited v Piedmont Investment Limited & 2 others

that the plainti had not taken any action in the matter since 2010 and the court was urged to dismiss the suit for want of prosecution. 3. The court considered the arguments by the advocates for the parties and noted that the plainti had not taken any action in the matter since November 22, 2010. The court found that the plainti had not shown any cause why the suit should not be dismissed and proceeded to dismiss the suit with costs for want of prosecution. What is now before me is the plainti’s application dated February 7, 2023 seeking to set aside the orders made by the court on March 22, 2017 dismissing the suit for want of prosecution. The application which was brought under Section 3A of the Civil Procedure Act and order 51 rules 1 and 4 of the Civil Procedure Rules was brought on several grounds. The plainti averred that the suit concerned a property whose value was in excess of Kshs 20,000,000/- and the plainti stood to lose the said amount if the orders sought were not granted. The plainti averred that following the dismissal of the suit, the plainti paid the 1st defendant’s costs of the suit in full and as such, the 1st defendant would not be prejudiced if the suit was reinstated for hearing on merit. 4. The application was opposed by the 1st defendant through grounds of opposition dated March 15, 2023 and a replying adavit sworn by Maxwell Otieno Odongo on the same date. The 1st defendant averred that the application was brought after inordinate delay and as such the plainti was guilty of laches. The 1st defendant termed the application an abuse of the process of the court. The 1st defendant averred that the plainti was given ample opportunity to prosecute its suit but failed to do so. The 1st defendant averred that the reinstatement of the suit would be prejudicial to it. 5. When the application came up for hearing on July 26, 2023, the advocate for the plainti relied entirely on the grounds on the face of the application and the supporting adavit and urged the court to allow the application. The advocate for the 1st defendant also relied entirely on the 1st defendant’s grounds of opposition and replying adavit and urged the court to dismiss the application. 6. I have considered the application together with the adavit led in support thereof. I have also considered the grounds of opposition and the replying adavit led by the 1st defendant in opposition to the application. The plainti’s application was brought principally under section 3A of the Civil Procedure Act which provides as follows: “ Nothing in this Act shall limit or otherwise aect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.” 7. The plainti’s suit was dismissed under order 17 rule 2(1) of the Civil Procedure Rules. Before dismissing the suit, the court was satised that the plainti had not shown any cause why the suit could not be dismissed for want of prosecution. I am of the view that once the court made an order dismissing the suit, the order could only be set aside on an appeal to the Court Appeal or by this court on an application for review. What is before me is not an application for review. The application seeks to set aside the order that was made by the court on March 22, 2017 after hearing the parties on a notice to show cause. Order 17 rule 2 of the Civil Procedure Rules does not give this court power to set aside such an order. The court cannot also set aside the order under section 3A of the Civil Procedure Act since the Plainti has not persuaded me that setting aside the said order is necessary for the ends of justice to be met or to prevent abuse of the court process. 8. For the foregoing reasons, I nd no merit in the notice of motion application dated February 7, 2023. The application is dismissed with costs to the 1st defendant. DELIVERED AND SIGNED AT NAIROBI THIS 27TH DAY OF JULY 2023 https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/19028/eng@2023-07-27 2

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S. OKONG’O JUDGE Ruling delivered virtually through Microsoft Teams Video Conferencing Platform in the presence of: N/A for the Plainti Ms. Nyangano for the 1st Defendant N/A for the 2nd and 3rd Defendants Ms. J.Omondi-Court Assistant https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/19028/eng@2023-07-27 3

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