JBF Global Visions Limited & another v Musmukh

in the interest of justice that the application be reinstated and heard on its merits. He argued that this application has been made without undue delay. 4. The Respondent led a replying adavit sworn on 23/08/2024 in opposition to the application. That the Applicant has not given sucient reasons to warrants the court's exercise of its discretion to set aside the order of 15 .7.2024. That the rm of Karanja & Ochwa has numerous advocates who could have handled the matter. That further, no evidence has been placed before the honourable court such as a cause list to prove that indeed, the rm of Karanja & Ochwa appeared in the three matters as listed in paragraph 3 of the supporting adavit. Lastly, that the honourable court in dismissing application dated 13/05/2024, the rm of Karanja & Ochwa is not on record for the Appellants/Applicants to be allowed to bring the present application. 5. When the said application came up for directions, the parties agreed to have the said application canvassed by written submissions. 6. The Applicant led submissions dated 29/04/2024 and 16/09/2024 where She submitted that they have instructed the Firm of Karanja & Ochwa Advocates to represent them in place of Anwar & Company Advocates. She submitted that this substitution aligns with the Applicant/Appellants’ express wishes and ensures competent representation in the Appeal. Advocates (Practice) Rules 1966 as made pursuant to the Act, and the Law Society of Kenya Code of Standards of Professional Practice and Ethical Conduct, May 2017, Gazette Notice No. 5212 provides that A party has a right to choose an Advocate of his own Choice. The right to legal representation even in civil cases should not be impeded. It is a constitutional right that is implicit in the provisions therein. 7. Reliance was placed in the case of Tom Kusienya & Others v Kenya Railways Corporation & others [2013] eKLR. He submitted that reinstatement of the Application is imperative to uphold the interests of justice as was held in D.T. Dobie & Co. (K) Ltd v. Muchina [1982] KLR 1. Lastly, it was submitted that reinstatement of the application will not cause undue prejudice to the Respondent as the initial Application seeks leave of this Honourable court to come on record to allow representation on the substantive Appeal. He argued that the fairness of the judicial process requires that substantive issues be addressed. 8. The Respondent on his part led submissions dated 23/08/2024 and submitted that in the present case, Judgment had been rendered on the 17/08/2023 where there was a determination of the dispute on merit and therefore the provision of Order 9 Rule 9 were applicable herein. That the provisions of Order 9 Rule 9 of the Civil Procedure Rules make it mandatory that for any change of Advocates to be eected after judgment has been entered, there must be an order of the Court upon application with notice to all parties or upon a consent led between the outgoing Advocate and the proposed incoming Advocate. He stated that the reasoning behind the provision was well articulated in the case of S.K.Tarwadi vs. Veronica Muehlmann(201) eKLR, Lal Bhidyi Shangani Builders & Contractors -vs- City Council Of Nairobi (2012)eKLR Monica Moraa -vs-Kenindia Assurance Co. Ltd. [2010] eKLR . 9. The Respondent further submitted that the suit having been dismissed in terms of order 17, it was open for the party to move the Court appropriately. Under the said Order 17, there is no provision for setting aside an order made by the Court. There is no room for setting aside an order of dismissal of a suit under the said Order. Lastly it was argued that the Applicant has not suciently explained his failure to attend court. Reliance was placed in the case of Edney Adaka Ismail vs. Equitv Bank Limited [2014] eKLR. https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/14160/eng@2024-12-11 2

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Legal Analysis And Decision 10. I have given due consideration to the parties’ respective positions as deposed in the adavit evidence and submissions. 11. The Applicant had led the application dated 13/05/2024 which came up for hearing on 15/07/2024 but was dismissed for want of prosecution. The Respondent has opposed the present application stating that the rm of Karanja & Ochwa Advocates who have led the present application lacks the authority to do so under Order 9 Rule 9 and that the orders sought are not provided for under the Civil Procedure Rules. 12. First, I will consider the argument that the provisions of Order 9 Rule 9 have not been complied with. I agree with the Respondent’s interpretation of the above proceedings. However, it is key to note that what is before the court is an appeal process or lawsuit which represents an independent and distinct legal procedure, particularly when considering the intent and purpose behind the above provision of the Civil Procedure Rules, 2010. 13. In the case of Koske v Langat (Environment and Land Appeal E005 of 2021) [2023] KEELC 21958 (KLR) (30 November 2023) (Ruling) the court stated that;- “those instructions are terminated and/ or are spent or exhausted with the conclusion of the trial in the lower court. An appeal is dierent ball game; it can be led by any other rm of Advocates on instructions of the Appellant without necessarily having to le Notice of Change of Advocates or ling an application to come on record in place of the previous Advocates.” 14. From the foregoing therefore and to this end, this being an appeal, it matters not that there is a lower court judgment. Further, since the appeal is still pending, the rm of Karanja & Ochwa Advocates need not follow the provisions of Order 9 Rule 9. All counsel needed to do was le a notice of appointment. 15. On the issue of reinstatement, Order 12 Rule 7 of the Civil Procedure Rules provides: “ Where under this Order judgment has been entered or the suit has been dismissed, the court, on application, may set aside or vary the judgment or order upon such terms as may be just”. 16. In an application for reinstatement of a dismissed suit or application, an applicant appeals to the discretion of the Court. The Court must caution itself not to exercise its discretion in a manner that will result in an injustice. see the case of Richard Ncharpi Leiyagu v Independent Electoral Boundaries Commission & 2 others [2013] eKLR. 17. Should the door of justice be closed to the Applicant for the mistake of counsel? I think not. In this regard, I am guided by the holding in Belinda Murai & Others - v- Amos Wainaina (1978) LLR 2782 (CALL). I am inclined to accept the applicant’s explanation that by the time his counsel was done with the mention before the other courts as shown in the attached cause lists, the dismissed application had been called out and dismissed for non-attendance. The Court notes that this was the rst time the application had been set down for hearing. From the averments and submissions of the Applicant’s counsel, it is quite clear that this was not a case of deliberate failure to attend Court but a miscalculation by counsel of time between the various courts. Considering the manner in which the current application has been brought it is clear that it was led 4 days after the said dismissal and in my view, this was without undue delay. Further, the Respondent has not demonstrated what prejudice he would suer if the orders sought are granted. https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/14160/eng@2024-12-11 3

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18. It is trite Courts must dispense substantive justice in line with the constitutional imperative under Article 159 of the Constitution of Kenya, 2010 that justice shall be administered without undue regard to procedural technicalities. 19. In the premises, I allow the Applicants’ Application dated 19/07/2024 and set aside the order of 15/07/2024 dismissing the application dated 13/05/2024. The Respondent shall bear the costs of the application. 20. Orders accordingly. DATED AND SIGNED AND DELIVERED AT BUNGOMA THIS 11TH DAY OF DECEMBER, 2024. HON.E.C CHERONO ELC JUDGE In the presence of Mr. Maloba for Respondent. Mr. Karanja for the Appellant. Bett C/A https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/14160/eng@2024-12-11 4

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