Augustus Kavita Changangu v Augustus Maithya Kyenze & 5 others

a. The plaintiff/applicant issued instructions for the filing and prosecution of this matter before the High Court of Kenya at Kitui, to Christopher Nzilu Nzioka practicing as Nzilu Nzioka & Company Advocates. The suit was then lodged on February 04, 2021. b. Remarkably, summons to enter appearance in the matter were issued on February 15, 2022, a year after filing. c. Despite the summons to enter appearance being issued a year after filing, it appears that the same were never served upon the Defendants/respondents. As there is no proof of service of the service of the summons lodged before the court. d. This is despite the plaintiff/applicant’s instructions to file and prosecute the matter, and timeously facilitating the same, including settlement of any professional/legal fees sought or demanded by the counsel. e. The Plaintiff/applicant has diligently and repeatedly followed up on the status of the present matter with the then instructed Advocate. All along, he was informed that the proceedings were on course, and at no time was he informed of a cause/reason to stall the proceedings. Consequently, he awaited (and still awaits) his date in court. f. The follow up with the then instructed counsel included numerous phone calls to the then instructed Advocate, as well as visits to his legal practice situated at Mutumo Plaza, Syunguni Road. g. In the month of June 2023, after several attempts to contact the then instructed Advocate, the plaintiff visited the court station with a view to peruse the court file and ascertain status of the suit. It is during this visit that the plaintiff realized that the matter had not only been dismissed for want of prosecution, but there was no evidence of service of summons to Enter appearance in the matter. h. It is upon making this realization that the plaintiff/applicant has instructed new advocates to take up conduct of the matter at his behest. i. The plaintiff/applicant remains intent on prosecuting the present matter against the Defendants to its logical end. The matter has failed to take off primarily on account of the advocate formerly instructed by the plaintiff, who has failed to progress the matter, without any just cause, and has intentionally misled the plaintiff/applicant on the status of this matter. j. To this end, for the errors infiicted upon by the former advocate upon the plaintiff, the plaintiff/applicant has since lodged a complaint before the Advocates Display Tribunal. k. However, the plaintiff urges that the errors of his former advocate should not be visited upon him, more so where he was misled to believe that the matter has since taken off. l. The plaintiff/applicant has approached this Honourable Court timeously, and still believes that justice can and will only be met on the prosecution of the present matter on its merits. m. The defendants/respondents shall not suffer any prejudice as there is no evidence on record that Summons to enter Appearance were ever served upon them. n. In view of the above stated grounds, as well as the facts captured in the supporting affidavit annexed hereto, it is the interest of justice that the orders sought in the present Notice of Motion application are granted. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19512/eng@2025-12-15 2

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3. The application is supported by the affidavit of the applicant where he has mainly reiterated the above grounds. He blames is former advocate on record for misconduct in the manner he handled the suit and that he filed a complaint before the advocates Disciplinary Tribunal. That he has availed evidence to demonstrate that he made multiple attempts which he made to reach out to his advocate through telephone calls and urges the court to find that he has not slept on his rights. 4. The application was opposed by the 1st, 2nd & 3rd respondents who filed an affidavit sworn by Augustus Mithya Kyenze. The respondents aver that the suit is devoid of merits as it runs a foul of the express provisions of Order 5 rule 1(2) and (6) of the Civil Procedure Rules as the suit had automatically abated after 30 days of the issue of the summons to enter appearance or for failure to have it prepared, signed and collected for service. That the applicant has not demonstrated that he had complaints against his advocate before the year 2023. They also depone that the woes between the applicant and his advocate do not warrant him to get a second biting on the cake. They urge the court to dismiss the application. 5. The 4th, 5th & 6th respondents opposed the application vide a notice of preliminary objection dated 25/2/2024 which has since been determined vide a ruling of this court dated 23/10/2024. The respondents filed a further affidavit sworn by Christopher Nzilu Nzioka on 31/10/2024. He deposes that he is a practicing advocate under license number P105/13209/2016 and in good standing. That he was the advocate on record for the applicant but the plaintiff’s file was misplaced in his office and therefore incapacitating follow up on the same to its logical conclusion. That inspite of receiving the notice to show cause, the office failed to advise him on the date as the office misinterpreted it to be a foreign matter. 6. That on account of the inadvertent and regrettable error, it is correct that he did not advise the plaintiff on the progress in the matter as well as the eventual dismissal of the proceedings. That he affirms that the applicant had not been aware of the progress in the matter on account of the error of his office. He urges the court not to dismiss the suit without giving the applicant a hearing as the error emanated from his office. That the respondents will not suffer any prejudice. The application was canvassed by way of written submissions. 7. I have considered the application, the averments in the affidavits and the submissions. The issues for determination are: 1. Whether the Firm of Sisule and Associates LLP should be allowed to come on record for the Plaintiff. 2. Whether the order dismissing the suit for want of prosecution should be set aside. (1) Whether the Firm of Sisule and Associates LLP should be Allowed to Come One Record for the Plaintiff. 8. The Civil Procedure Rules requires that where a party is represented by an advocate in a Civil Suit upto the determination of the said Suit, he/she may not at that stage change the advocate without an Order of the Court. This is meant to cure the mischief where a party obtains Judgment while so represented by the advocate then decides to prop the advocate after Judgment has been entered and possibly denies the advocate his fees. Order 9 rule 9 Civil Procedure Rules requires that the change be effected by an order of the court or by consent of the Parties. It provides: “ When there is a change of advocates or when a party decides to act in person having previously engaged an advocate, after Judgment has been passed, such change or intention to act in person shall not be effected without an order of the court – https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19512/eng@2025-12-15 3

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a. Upon application with notice to all the parties, b. Upon consent filed between the outgoing advocate and the proposed incoming advocate or party intending to act in person as the case may be.” 9. Thus, the provision of Order 9 rule 9 allows the court to grant leave upon an application with notice to all the parties or upon a consent filed between the outgoing advocate and the proposed in coming advocate or party intending to act in person. 10. In this case the applicant had act ed in the suit while represented by an advocate. The record shows that on 27/5/2024 the Firm of Advocates for the Applicant applied to came on record for the applicant. The suit had been dismissed for want of prosecution. The court on application by counsel for the applicant allowed the firms of SiSule and Associates LLP to come on record for the plaintiff. With the said court order, it is clear that the counsel for the applicant was allowed to come on record and is properly on record and I need not belabor the point any further. (2) Whether the Order Dismissing the Suit for Want of Prosecution should be Set Aside. 11. I have perused the ruling by Justice Limo dated 23/10/2024 and noted that at paragraph 18 of the Ruling he dealt at length with this issue and the Judge stated as follows: “ In my view this court under Section 3A Civil Procedure Act and Order 51 rule 15 has the jurisdiction and discretion to set aside the dismissal order. And as correctly pointed out by the defendants the discretion of the court is required to be exercised judiciously considering the circumstances of the case.” 12. The Judge however, stated that since he was considering a preliminary objection to the application to reinstate the suit he could not consider the merits of the grounds raised by the applicant. Order 17 rule 2 of the Civil Procedure Rules provides that a court may issue a notice to show cause why a suit pending in court should not be dismissed for want of prosecution. Order 17 rule 6 of the Civil Procedure Rules is incomplete and does not give court discretion to reinstate the suit that is dismissed for want of prosecution. The applicant has deponed that his advocate failed to appraise him on the progress of the case. 13. The said advocate swore an affidavit confirming that he was served with the notice to show cause but took no actin as the file had been misplaced. The suit was subsequently dismissed about one year after the last pleading was filed. The law applicable to the issue of reinstatement of the suit is Section 3A of the Civil Procedure Act (cap 21 Laws of Kenya) which provides that – “ Noting in this Act shall limit or otherwise affect the inherent powers 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.” 14. On the other hand, the jurisdiction of the court to extend the validarity of the summons to enter appearance is donated by Order 5 rule 2(2) of the Civil Procedure Rules. The law is explicit that the exercise of discretion should be done judiciously. Order 5 rule 2(2) provides that: “ Where a summons has not been served on a defendant the court may extend the validity of the summons from time to time if satisfied that it is just to do so.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19512/eng@2025-12-15 4

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The rule on service of summons envisages that there is a live suit which the defendant is notified thro’ the summons to enter appearance. 15. The test as to whether the court should exercise its discretion to reinstate the suit is whether the delay in prosecuting the suit has been explained with plausible reasons and, secondly whether there was inordinate delay in bringing the application, and whether the respondent is likely to suffer prejudice. On whether the applicant has given a plausible reason, he has urged the court of find that the dismissal of the suit was due to the mistake of his counsel. It is generally accepted that the mistake of counsel should not be visited on his client. The Court of Appeal in the case of Tana and Athi Rivers Development Authority v Jeremiah Kimigho & 2 Others (2015) KECA 674 KLR stated that: “ Time and again it has been said that the mistake of counsel should not be visited upon an innocent litigant.” 16. The applicant has adduced sufficient evidence to proof that it is his advocate who failed to act. He did not file the summons to enter appearance together with the plaint as required under the Civil Procedure Rules nor did he prick the summons to enter appearance which were signed by the Deputy Registrar. The applicant had engaged a counsel to represent him in all the aspects of the case. 17. The counsel was served with a notice to show cause why the suit should not be dismissed. He took no action. It is clear in these proceedings that the woes of the applicant were due to the mistake on the part of his counsel. Counsels are unequivocally obligated to exercise candor. The misstate of the counsel remains the mistake of counsel and not of the litigant. The misstate of counsel should not be visited on the litigant. 18. I find that the applicant has advanced reasonable grounds on a balance of probabilities to warrant this court to exercise discretion in his favour. The next consideration is whether there was unreasonable delay in filing the application. In the case of Ivita v Kyubu (1984) KLR 441 it was stated that: “ the test is whether the delay is prolonged and inexcusable, and if it is, can justice be done despite such delay.” 19. The suit was dismissed under Order 17 rule 2 of the Civil Procedure Rules (supra). The applicant has urged the court to reinstate the suit. this court has inherent powers to exercise its discretion to do justice and reinstate the suit, see Section 3A Civil Procedure Act, (supra) and Article 159(2)(d) of the Constitution which states that Justice shall be administered without undue regard to procedural technicalities. On the other hand, Section 1A & 1B of the Civil Procedure Act which provides for the duty of the court which is to do substantive justice which is affordable proportionate and expeditious. This is the requirement of justice and the overriding objectives in assisting the court to attain expeditious and just disposal of cases. The court should strive to determine cases on merits and not to dismiss them as such an act is draconian and throws a party from the seat of justice. Courts should strive to sustain suits rather than dismiss them on technicalities. 20. This suit was dismissed on 30/9/2022. The reasons that led to the dismissal has been explained as stated above. This application was filed on 25/10/2023, a period of over one year. The applicant in his grounds in support of the Notice states that he came to realize that the suit had been dismissed and he instructed another counsel. The explanation is plausible as the former advocate swore a replying affidavit admitting his inaction and that the notice of dismissal of suit was not acted upon. The delay of over one year is no doubt inordinate. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19512/eng@2025-12-15 5

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21. It is trite law that in determining the issue of inordinate delay each case must be taken on its own individual circumstances. The discretion of the court should always be exercised judiciously. The decision of the court should be based on the grounds advanced by the applicant. In this case the applicant has given plausible explanation as stated earlier in tis ruling. I should therefore exercise discretion in his favour. 22. Finally, this court has to decide whether the respondents are likely to suffer any prejudice. The respondents had not been served with the plaint and the summons to enter appearance. They are not likely to suffer any prejudice. They have not filed their defence and as stated by Justice Limo in his Ruling in this matter, the merits of the assertions cannot be determined without first hearing the applicant to explain the reason for his deep slumber. The explanation by the applicant has been given and found to be plausible. The respondent is not likely to suffer any prejudice as he may be compensated with an award of damages. The reinstatement and the hearing of the suit is not likely to cause any injustice to the respondent or even result to a grave injustice. The court should always strive to do justice to the parties. The dictate of justice is that where delay is explained the court should exercise its discretion infavour of hearing the dispute and not dismiss it on procedural technicalities. 23. For these reasons, I will exercise discretion in favour of the applicant and order that: 1. The order dismissing the suit for want of prosecution dated 30/9/2022 is set aside. 2. The suit is reinstated and shall be heard and determined on its merits. 3. The applicant shall take all the necessary steps in law to ensure the progress of the case and the expeditious disposal of the case. 4. The costs shall abide the outcome of the case. DATED, SIGNED AND DELIVERED AT KITUI THIS 15TH DAY OF DECEMBER, 2025. HON. LADY JUSTICE L. GITARI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19512/eng@2025-12-15 6

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