Katana & 56 others v Kenya Pipeline Company Limited

3. This court has considered the application and submissions therein. This suit was dismissed for nonattendance of the Applicant when it came up for on 23rd March 2023. The relevant law governing setting aside judgment or dismissal is order 12 rule 7 of the Civil Procedure Rules. It provides as follows: Where under this order judgment has been entered or a suit dismissed, the court, on application, may set aside or vary the judgment or order upon such terms as may be just” 4. The determination of whether to or not to allow an application for setting aside judgment or an order for dismissal of a suit due to non-attendance of a Plainti is within the wide discretion of the court. This discretion has to be exercised judiciously, as was stated the case of Shah v Mbogo (1979) EA 116 quoted with approval in the case of John Mukuha Mburu v Charles Mwenga Mburu (2019) eKLR, where that court stated that; ......this discretion is intended to be exercised to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake or error, but is not designated to assist a person who has deliberately sought, whether by evasion or otherwise to obstruct or delay the cause of justice.” 5. For the Court to exercise its discretion in favour of the Applicant, he has satisfy it that there is sucient cause or reason to warrant it to be put into use in setting aside the order of dismissal and subsequently reinstate the suit. Sucient Cause was dened by the Supreme Court of India in Parimal v Veena which was cited with approval in the case of Wachira Karani v Bildad Wachira (2016) eKLR. In the case, the said Supreme Court stated that; sucient cause" is an expression which has been used in large number of statutes. The meaning of the word "sucient" is "adequate" or "enough", in as much as may be necessary to answer the purpose intended. Therefore the word "sucient" embraces no more than that which provides a platitude which when the act done suces to accomplish the purpose intended in the facts and circumstances existing in a case and duly examined from the view point of a reasonable standard of a curious man. In this context, "sucient cause" means that party had not acted in a negligent manner or there was want of bona de on its part in view of the facts and circumstances of a case or the party cannot be alleged to have been "not acting diligently" or "remaining inactive." However, the facts and circumstances of each case must aord sucient ground to enable the court concerned to exercise discretion for the reason that whenever the court exercises discretion, it has to be exercised judiciously" The court in the above case added that while deciding whether there is a sucient cause or not, the court must bear in mind the object of doing substantial justice to all the parties concerned and that the technicalities of the law should not prevent the court from doing substantial justice and doing away with the illegality perpetuated on the basis of the judgment impugned before it. The test to be applied is whether the defendant honestly and sincerely intended to remain present when the suit was called for hearing. Sucient cause is thus the cause for which the defendant could not be blamed for his absence. Sucient cause is a question of fact and the court has to exercise its discretion in the varied and special circumstances in the case at hand. There cannot be a straight-jacket formula of universal application. Thus, the defendant must demonstrate that he was prevented from attending court by a sucient cause.” 6. In the instant case the Applicant claimed that failure to appear in court on the 25th October 2022 by the Plaintis’ Counsel was unintentional and inadvertent. That on 25th October 2022, when the https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/22162/eng@2023-12-13 2

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matter was called out for hearing of notice to show cause why the same should not be dismissed the Court dismissed the suit in the absence of the Plaintis and their Advocate. That at the time the matter was called out, the Plaintis' Advocate Ms. Hellen A. Shiundu was before another court. That the mistake of the Counsel must not be borne by their client. From the court record I note that the le was previously in court on 23rd January 2020 when the Plaintis’ application for an injuction was dismissed. The Plaintis took no steps until they were served with a mention notice for the 25th October 2022 and when the matter came up for mention neither the Plainti nor his advocate where present in court hence the dismissal. This matter was led way back in 2018. The court further notes that though this application is dated 31st October 2022 the payment receipts reads 26th April 2023 when the taxation process began! I nd that both the Applicants and their advocate demonstrated inexcusable laxity in prosecuting this case, and not only on the material date but others. It is the role of the Plaintis and their counsel to ensure that the case proceeds for hearing expeditiously. In the case of Utalii Transport Co. Ltd and 3 Others v N.I.C. Bank and Another (2014) eKLR, the court held that; It is the primary duty of the plaintis to take steps to progress their case since they are the ones who dragged the defendant to court.” 7. It is also the duty of the parties to assist the court to adjudicate on the matters brought before it expeditiously as was held in Gideon Sitelu Konchella v Daima Bank Limited (2013)eKLR where the court while citing the case of Mobil Kitale Service Limited v Mobil Oil Kenya Limited, held that:It is in the interest of justice that litigation must be conducted expeditiously and eciently so that injustice by delay would be a thing of the past. Justice would be better served if we dispose of matters expeditiously ….the overriding objection of this Act and Rules made hereunder is to facilitate the just, expeditious, proportionate and aordable resolution of the civil disputes governed by the Act.” 8. The Plaintis/Applicants blame their advocate for the inadvertent mistake. This is the Plainti’s case and they ought to have been vigilant. The case does not belong to their advocate. In the case of Savings and Loans Limited v Susan Wanjiru Muritu Nairobi HCCC397/2002, the court stated that; Whereas it would constitute a valid excuse for the defendant to claim that she had been let down by her former advocates failure to attend court on the date the application was xed for hearing, it is trite that a case belongs to a litigant and not to her advocate. A litigant has a duty to pursue the prosecution of his or her case. 9. The court cannot set aside dismissal of a suit on the sole ground of a mistake by counsel of the litigant on account of such advocate’s failure to attend court. It is the duty of the litigant to constantly check with her advocate the progress of her case. 10. I am minded that dismissal of cases upon summary procedure may be draconian but when the occasion calls for such action, the court should not shy away from taking such measures (see the case of Kenya Power & Lightning Co. Ltd v Alliance Media Kenya Ltd (2014) eKLR). The Plaintis were indolent and this is inexcusable. Suits are meant to be prosecuted. From the facts before me, the law and authorities cited above I nd that the application is unmerited and I dismiss it with no order as to costs as the same was undefended. It is so ordered. DELIVERED, DATED AND SIGNED AT MOMBASA THIS 13TH DAY OF DECEMBER 2023. N.A. MATHEKA https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/22162/eng@2023-12-13 3

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JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/22162/eng@2023-12-13 4

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