Kenya Power & Lighting Co Ltd v Gachagua & 2 others

3. In their submissions, the applicants contend that they have complied with the provisions of Order 9 rule 9 by notifying the previous advocates that they now have a new advocate. Citing the case of Wachira Karani vs. Bildad Wachira (2016) eKLR and David Gicheru v. Gicheha Farms Limited & Another [2020] eKLR, the applicants contend that the justice of this matter as well as the good sense call for this court to exercise discretion in their favour. They further contend that their defence led by their previous advocates does raise triable issues. They attribute their failure to appear in court to lack of notication, and that such mistakes should not be vested upon them. To this end, they rely on the case of Murai v Wainaina (No.4) 1982 KLR 38 amongst other cases. 4. The application is opposed by the plainti via the Replying Adavit of their advocate, one Dennis Maanzo. He contends that the applicants were well aware of this matter as they were represented by Khaminwa & Khaminwa advocates who were duly served with the requisite documents. He added that during the 20 years that the matter was in court, (the same having been led initially in 2004 in the High Court), the applicants never demonstrated any interest in the matter. He avers that no sucient reasons have been proered to warrant the grant of the orders sought. 5. It was submitted for the plainti that the defendants were duly served with summons to enter appearance, that is why they appointed an advocate to represent them in the case. Relying on the case of Busuru & Busuru Investments Limited v Waraba & Another (Civil Application E094 of 2023) (2023) KECA 1371 (KLR) (17 November 2023), it was argued that equity does not aid the indolent, and that in the case at hand, the applicants have been indolent for a period of 20 years. 6. This is a case whereby the applicants opposed the suit vide an amended statement of defence led on 2.8.2019, thus it is not a case where they were not served with summons to enter appearance. In James Kanyiita Nderitu & Another v Marios Philotas Ghikas & Another [2016] eKLR, the Court of Appeal stated that; “ In such a scenario, the court has unfettered discretion in determining whether or not to set aside the default judgment, and will take into account such factors as the reason for the failure of the defendant to le his memorandum of appearance or defence, as the case may be; the length of time that has elapsed since the default judgment was entered; whether the intended defence raises triable issues; the respective prejudice each party is likely to suer; whether on the whole it is in the interest of justice to set aside the default judgment, among other. See Mbogo & Another v. Shah (Supra), Patel v. E.A. Cargo Handling Services Ltd (1975) EA 75, Chemwolo & Another v. Kubende [1986] KLR 492 and CMC Holdings v. Nzioki [2004] 1 KLR 173).” 7. As rightly pointed out by the plainti, this case has been in court for a record 20 years and counting, having been led in the High Court in the year 2004. In the case of Lawrence Kinyua Mwai v Nyariginu Farmers Co Ltd & Another [2019] eKLR, the court (Mbugua J) stated that; “ One of the cardinal principles in our constitution is “the expeditious delivery of justice” – see Article 159 (2) (b) of the Constitution of Kenya, which in eect codies the 17th century maxim “Justice delayed is justice denied”. This means that if justice is not provided in a timely manner to the parties, it loses its importance and it violates the human rights of the litigants and their families. That is precisely why rights to speedy trials are incorporated in law worldwide”. https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/13927/eng@2024-12-17 2

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8. The applicants have not given any plausible explanations as to the eorts they made in the lifespan of this suit to ensure that the matter was prosecuted speedily. They are now blaming their advocates post judgment. Where were they all this time. 9. In the case of Mwangi Gachiengu & 2 Others – Vs - Mwaura Githuku & Another – (2019) eKLR, it was held that; “ It is trite law that a matter once led in court does not belong to the advocate but to the litigant. It is the responsibility of the litigant to be in constant touch with his advocate on the position of the matter. Where a litigant goes to sleep after ling a suit, he cannot blame his advocate for having not updated him on the position of the matter…” 10. I also nd that the defence of the applicants was that they had been allocated the land by the Nairobi City Council (now a County), but they never led any supporting documents to that eect, as stipulated under Order 3 rule 2 of the Civil Procedure Rules. 11. All in all. I nd that the application dated 22.10.2024 is not merited, the same is hereby dismissed with costs to the plainti. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 17th DAY OF DECEMBER 2024 THROUGH MICROSOFT TEAMS. LUCY N. MBUGUA JUDGE In the presence of: Maanzo for Plainti Kadenge for 1st and 3rd Defendants Court Assistant: Vena https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/13927/eng@2024-12-17 3

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