Jamii Telecommunications Limited v Kenya Urban Roads Authority & another

4. The plainti further deponed that the advocates for the defendants did not oppose the adjournment; that the 1st defendant had served the plainti with their documents that morning at 7:25a.m and that his advocate was therefore not suciently instructed to proceed with the matter. 5. In view of the foregoing, the plainti deponed, it is in the interest of justice that the order dismissing the suit be reviewed/varied and be granted leave to le documents and to prosecute the suit. 6. The 2nd defendant led a replying adavit dated November 15, 2022 and sworn by its director, Najib Rashid. In asking that the application be dismissed, the 2nd defendant stated that the court has no jurisdiction to grant the orders sought as an order of dismissal for want of prosecution can only be appealed rather than reviewed by the court that issued it. 7. It was deponed by the 2nd defendant’s Director that the plainti’s allegation that they were not ready to proceed with the hearing after discovering that their witness was unavailable then was without merit because the plainti, having served the 2nd defendant with a hearing notice a month prior to the hearing date (on April 22, 2022) was supposed to have put its house in order. 8. In conclusion, the 2nd defendant Director deposed that the Plainti’s desire to include additional documents in a suit that was more than ten years old was against the law and prejudicial to the 2nd defendant. The 1st defendant did not le a replying adavit. The parties led submissions and authorities which I have considered. Analysis and Determination 9. Based on the foregoing, the following two issues arise for determination: i. Whether the court has jurisdiction to hear the application. ii. Whether the plainti’s suit should be reinstated. 10. Theplainti’s suit was dismissed on May 25, 2022 for want of prosecution. The plainti has applied for a review or setting aside of the order of dismissal. The 2nd defendant has argued that the court has no jurisdiction to entertain the application and that the dismissal order should be retained. 11. Order 17 Rule 2 (6) of the Civil Procedure Rules provides that a party may apply to court after dismissal of a suit under the Order. While the nature of the orders that can be given pursuant to such an application are not listed, this court can invoke its inherent jurisdiction to make such orders as it deems t. 12. The inherent jurisdiction of the court is provided for as follows insection 3A of the Civil Procedure Act: “ 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.” 13. In view of the foregoing, I nd that the court has jurisdiction to determine the current application. 14. Having established that thecourt has powers to determine the current application, the question now turns to whether it should use the said power to reinstate the plainti’s suit. The crust of the plainti’s case is that the suit should be reinstated because the circumstances leading to the application for an adjournment were beyond its control. 15. According to the plainti, there has been no delay in prosecuting the case and bringing the application and that no prejudice will be occasioned to the defendant by a reinstatement order. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20350/eng@2023-09-28 2

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16. In opposing this position, the 2nd defendant stated that the grounds for reinstatement have no merit and that it will be prejudiced by the reinstatement and introduction of evidence in a very old case. In the case of Catherine Kigasia Kivai v Ernest Ogesi Kivai & 4 others [2021] eKLR the court stated as follows: “ Reinstatement of a suit is at the discretion of the court, which discretion ought to be exercised in a just manner, as was held in Bilha Ngonyo Isaac v Kembu Farm Ltd & another & another [2018] eKLR ((JN. Mulwa J), which echoed the decision of the court in Shah v Mbogo & another (1967) EA 116 (Harris J), where the court stated on the matter of discretion: The discretion is intended so as to be exercised to avoid injustice or hardship resulting from inadvertence or excusable mistake or error but is not designed to assist a person who has deliberatively sought whether by evasion or otherwise to obstruct or delay the course of justice.” 17. In the current application, I am not convinced that the discretion of the court should be exercised to reinstate the plainti’s suit. I am not convinced that the Plainti has demonstrated inadvertence or excusable mistake or error on its part or its advocate. 18. I say so because the plainti had known of the hearing date for more than a month as per the evidence on record. It has not been demonstrated that the unavailability of the witness came to the attention of the plainti within that month or on a date so close to the trial that alternative arrangements could not be made. The plainti was seeking to delay the suit without a just cause. 19. Considering that this suit is more than ten years old, the delay on the part of theplainti is inexcusable and should not be entertained. The plainti was tardy in nding an alternative witness and in bringing this application (which was brought four months after dismissal). 20. For those reasons, the application is dismissed with costs to the defendant. DATED, SIGNED AND DELIVERED VIRTUALLY IN NAIROBI THIS 28TH DAY OF SEPTEMBER, 2023. O. A. ANGOTE JUDGE In the presence of; Ms Nyachera for Nyamweya for 2nd Defendant No appearance for Plainti No appearance for Defendant https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20350/eng@2023-09-28 3

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