Swaleh v Swaleh & 4 others

3. Mr. Gichana deposed that he attended the virtual court session on 22nd May 2025 when the matter was listed to be mentioned to conrm compliance of court orders made on 18th March 2025. He was in present from 9.00 a.m till past 4.30 p.m. but he never heard the matter called out. He added that he heard another matter for his co-counsel, Magolo & Co. Advocates, dismissed, but asserted that it was not the present one. 4. The application was opposed by the 3rd and 4th Defendants through a Replying Adavit sworn on 21st August 2025 by the 4th Defendant, who deposed that the suit had been struck out on 22nd May 2025 for the Plainti’s failure to comply with the Court’s directions issued on 7th April 2025. He further averred that on the material date, the Court had spent over ten minutes issuing directions, and therefore the Plainti’s counsel could not credibly claim that he had been on the virtual platform but did not hear the matter being called out. 5. The 4th Defendant averred that the Application had been led more than a month after the suit was struck out, casting doubt on the Plainti’s claim that counsel had been present during the mention. No explanation had been oered for the delay. He further deposed that the Plainti had two advocates on record, and it was unlikely that both failed to hear the matter being called out, noting that counsel’s name had been repeated several times without response. He maintained that the Plainti had disobeyed the Court’s directions of 7th April 2024, thereby justifying the striking out of the suit. In his view, the Application was unmerited and ought to be dismissed, though if allowed, the Defendants sought thrown-away costs of Kshs. 50,000. 6. The application was heard through written submissions. Plainti ’s Submissions 7. Counsel for the Plainti submitted that Court had clear statutory, inherent, and constitutional jurisdiction to set aside the dismissal order and reinstate the suit, under Order 12 Rule 7 of the Civil Procedure Rules and Section 1A, 1B, 3A and 64 (e) of the Civil Procedure Act. He added that Article 159 (2) (d) of the Constitution empowers the court to do substantive justice without undue regard to procedural technicalities. To counsel, the reason given herein was plausible sucient within the meaning of Order 12 Rule 7 and Order 17 Rule 2 (2); that the Plainti should not be condemned for counsel’s inadvertent failure and technological mishaps. 8. Counsel relied on the cases of Nicholas Kiptoo Arap Korir Salat v IEBC & 7 others [2014] eKLR; Patel v East Africa Cargo Handling Services Ltd [1974] EA 75; Philip Keipto Chemwolo & Another v Augustine Kubende [1986] eKLR; Ivita v Kyumbu [1984] eKLR; Mwangi S. Kimenyi v Attorney General & Another [2014] eKLR; Shah v Mbogo & Another [1967] EA 116; CMC Holdings Ltd v James Mumo Nzioki [2004] eKLR, 9. Further citing Article 50 (1) of the Constitution and the cases of Ivita v Kyumbu [supra]; Mwangi S. Kimenyi v Attorney General & Another [supra]; Utalii Transport Company Limited & 3 Others v NIC Bank & Another [2014] eKLR, and Moses Mwangi Kimari v Shammi Kanjirapparambil Thomas & 2 others [2014] eKLR, counsel argued that dismissal of the suit at the mention stage was unlawful, punitive and inconsistent with the overring objectives and dictates of substantive justice. He added that the replying adavit does not disclose any irreparable prejudice that would be occasioned to the Defendants if the suit is reinstated. 10. Counsel added that it is in the interest of justice that the application is allowed and relied on the case of Richard Ncharpi Leiyagu v IEBC & 2 Others [2013] eKLR, where the Court of Appeal held that the right to a hearing has always been a well-protected right in our Constitution and is also the cornerstone https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18502/eng@2025-12-18 2

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of the rule of law. This is why even if courts have inherent jurisdiction to dismiss suits, this should be exercised sparingly and with abundant caution, and only in the clearest of cases. 3rd and 4th Defendants’ Submissions 11. Counsel argued that the application is incurably defective having been anchored on the wrong provisions, that is, Order 17 rule 2 which concerns dismissal for want of prosecution where no step has been taken for at least one year, which was not the case herein. To him, this discrepancy went into the substance of the matter and was not a mere technicality. He relied on the case of Zacharia Okoth Obado vs Edward Akong'o Oyugi & 2 Others (2014) eKLR. 12. Relying on the case of Gitau vs Muriuki [1986] KLR 211, counsel further submitted that where it is shown that an Applicant has relied on a wrong provision of the law in support of an Application intentionally so as to mislead the court on the facts and circumstances that transpired; the court will not be obligated to apply Article 159(2) (d) in order to cure the defect. He argued that that the Applicant has deliberately sought to create an absurdity in the sense that this Honourable court acted beyond its powers in dismissing the suit for want of prosecution which assertion is strictly misleading, dishonest and mischievous so as to disentitle the Applicant from the benet of Article 159(2)(d). 13. He added that the Applicant's reliance on Order 1 rule 7 and Order 5 rule 17 is misplaced and confusing as these provisions concern joinder and substituted service respectively which provisions are wholly irrelevant to an application for reinstatement. 14. On whether the Plainti had demonstrated sucient cause, counsel cited the denition of sucient cause discussed in Nakuru Matrimonial Cause 2 of 2021; TKR v. JMM[2021] КЕНС 1054 (KLR) and Wachira Karani vs Bildad Wachira [2016] eKLR. He submitted that the Plainti’s allegations remain unsupported by any credible evidence, as such he has failed to meet the threshold for reinstatement. He relied on the case of CMC Holdings Ltd vs James Mumo Nzioka [2004] eKLR. 15. To justify their request for thrown away costs in the event the application is to be allowed, counsel relied on the case of County Government of Tana River & another v Hussein Fumo Hiribae [2021] eKLR. Analysis And Determination 16. I frame the following issues for determination: i. Whether the application is defective for being anchored on the wrong provisions; ii. Whether the order dismissing the suit should be set aside and the Plaint dated 29th January, 2024 reinstated. 17. The notice of motion was brought under the substantive provisions of Order 1 rule 7, Order 5 rule 17, 17 Rule 2 and Order 51 Rule 1 of the Civil Procedure Rules. Order 1 rule 7 makes provision for When plainti is in doubt from whom redress to be sought. Order 5 rule 17 is on substituted service. Order 17 rule 2 is on notice to show cause as to why a suit should not be dismissed in instances when no application has been made or step taken by either party for one year. Order 51 rule 1 is on the procedure to move the court under applications. 18. The suit was dismissed on 22nd May 2025 for non-compliance with the Court’s directions issued on 7th April 2025. On that date, the Court directed the Plainti’s counsel, Mr. Magolo, to indicate how he intended to proceed against the 1st Defendant, it having been conrmed that the said Defendant was deceased. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18502/eng@2025-12-18 3

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19. Although the Plainti cited several provisions that were not directly applicable to the circumstances of the dismissal, the Court is guided by the principle that wrong citation of the law is not, in itself, fatal where the substance of the application is clear and the Court is otherwise properly seized of jurisdiction. 20. The power to set aside a dismissal made in the absence of a party is expressly provided for under Order 12 Rule 7 of the Civil Procedure Rules and is further anchored in Sections 1A, 1B, and 3A of the Civil Procedure Act as well as Article 159(2)(d) of the Constitution. The Court shall therefore proceed to consider the application on its merits. 21. Order 12 Rule 7 vests this Court with discretion to set aside or vary any order of dismissal upon such terms as may be just. The principles guiding the exercise of such discretion are well settled. Firstly, the discretion has to be exercised judiciously, as was stated in the case of Shah vs Mbogo (1979) EA 116 quoted with approval in the case of John Mukuha Mburu v Charles Mwenga Mburu [2019] eKLR, where that court held thus: “ ......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.” 22. The guiding principles for exercise of that discretion were well stated by the Court of Appeal in Simon Thuo Mwangi v Unga Feeds Limited [2015] eKLR as: “ On reasons presented, it takes course to set aside or refuse to set aside. The court thus exercises a judicial discretion all the time having in mind what is just and fair in the case. The reason to set aside must therefore be based on good grounds or reasons advanced not on a whim or caprice.” 23. The Court must be satised that there exists sucient cause to justify the failure leading to dismissal, and that the Applicant has demonstrated diligence and an intention to prosecute the suit without undue delay. Above all, the Court must balance the right of the litigant to a fair hearing under Article 50 of the Constitution against the need for expeditious disposal of cases as enshrined under Sections 1A and 1B of the Civil Procedure Act. 24. It is thus an applicant’s duty to demonstrate the existence of a sucient cause to warrant the court to exercise that discretion in its favour, in this case, the Plainti. Sucient Cause was dened in the case of Wachira Karani v Bildad Wachira [supra] where the court cited with approval the Supreme Court of India in Parimal v Veena as follows: “ 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 https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18502/eng@2025-12-18 4

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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.” 25. In the present case, counsel for the Plainti stated that he was logged on to the Court’s platform when the matter was dismissed but did not hear it being called out. In my considered view, this explanation is insucient. The Plainti was represented by two advocates, yet no explanation was given as to why Mr. Magolo also did not hear the matter, or whether he was even present. Furthermore, Mr. Gichana himself admitted in his adavit that he heard the Court dismiss another matter handled by Mr. Magolo. This indicates that there was no hearing or technological mishap preventing him from following the proceedings. 26. Further, even assuming counsel did not hear the call-out on the material date, no explanation was oered for the delay of more than one month before bringing the present application. The absence of prompt action undermines the Applicant’s claim of diligence and suggests a lack of seriousness in complying with the Court’s directions issued on 7th April 2025, which had required counsel to indicate how the suit would proceed against the deceased 1st Defendant. 27. The Court also notes that the dismissal did not occur arbitrarily but followed the Plainti’s failure to comply with clear and substantive directions. The non-attendance on 22nd May 2025 was merely the nal manifestation of this non-compliance. A litigant cannot rely on alleged inadvertence to circumvent obligations that had remained unmet since early April. 28. While the right to a hearing is fundamental, reinstatement is not automatic. The Court must be satised that the Applicant was prevented by excusable mistake or unavoidable circumstances, and that no prejudice would be occasioned to the opposing parties. In this case, the Plainti did not demonstrate sucient cause for the non-attendance or for the earlier failure to comply with directions that were central to the further conduct of the suit. 29. In the circumstances, I nd no basis upon which to exercise the Court’s discretion in favour of reinstatement. The application dated 2nd July 2025 is accordingly dismissed with costs. DATED, SIGNED AND DELIVERED AT MALINDI ON THIS 18TH DAY OF DECEMBER, 2025. MWANGI NJOROGE JUDGE, ELC, MALINDI. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18502/eng@2025-12-18 5

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