Automated Summary
Key Facts
The plaintiffs' suit was dismissed on November 7, 2018 for want of prosecution after their counsel failed to prepare the case for hearing. The plaintiffs filed an application on January 25, 2022 seeking to set aside the dismissal, arguing their previous counsel's negligence caused the failure. The court found the application was filed with unreasonable delay (over 3 years) and that the plaintiffs showed no diligence in following up their case. The court ruled that dismissals in the presence of counsel are inter partes judgments not subject to reinstatement, and the plaintiffs' blame-shifting to their advocates did not justify equitable relief.
Issues
- Whether this Honourable Court is seized and possessed of the requisite Jurisdiction to set aside, vary or review the impugned orders that were made on the 7th November 2018, including whether such orders constitute an inter-partes judgment under Order 17 Rule 4 of the Civil Procedure Rules 2010.
- Whether the subject Application discloses sufficient cause or reasonable basis to warrant being granted, considering the 3-year delay in filing and the lack of explanation for inaction, as well as whether the plaintiffs' reliance on their previous counsel's failure justifies reinstating the suit.
Holdings
- The court dismissed the application for insufficient cause, citing unreasonable delay (3 years 2 months) in filing without credible explanation, and found the plaintiffs guilty of laches for failing to exercise due diligence in pursuing their case, relying on cases like Rajesh Rughani v Fifty Investment Ltd (2005) eKLR.
- The court held that it lacks jurisdiction to set aside, vary, or review the dismissal orders of November 7, 2018, as the dismissal was inter partes and constitutes a final judgment under Order 17 Rule 4 of the Civil Procedure Rules 2010, which cannot be set aside through reinstatement applications.
Remedies
The application was dismissed with costs to the defendants/respondents.
Legal Principles
- The court held that a dismissal under Order 17 Rule 4 of the Civil Procedure Rules 2010 constitutes a final judgment in favor of the defendant, which is not amenable to being set aside except through appeal. This dismissal, made in the presence of the plaintiff's counsel, was deemed an inter partes judgment, precluding review or reinstatement.
- The plaintiffs failed to demonstrate sufficient cause or reasonable basis for the reinstatement of their case, as required by the court. The onus was on them to prove that their delay and inaction were justified, which they did not satisfactorily address.
- The court emphasized that equity does not assist those who are idle, and the plaintiffs' unreasonable delay (over 3 years) without credible explanation negated their claim. The plaintiffs' failure to follow up on their case despite being represented by counsel was deemed inexcusable.
Precedent Name
- Philip Keipto Chemwolo & Another v Augustine Kubende
- Rajesh Rughani v Fifty Investment Ltd & Another
- CMC Holding Ltd v Nzioki
- Belinda Murai & Others v Amos Wainaina
- Homboyz Entertainment Limited v Secretary National Building Inspectorate & 2 others
- Njue Ngai v Epbantus Njiru Ngai & Another
- Charles Wanjohi Wathuku v Githinji Ngure & Another
- Edny Adaka Ishmael v Equity Bank Ltd
- Bains Construction Co Ltd v John Mzare Ogowe
- Duale Maryann Gure v Aminal Mohamud & Another
- Johnson Home Gichhi & George Muriuki Gichubi v Isaac Gathungu Wanjohi & 5 Others
- Habo Agencies Limited v Wilfred Odhiambo Musingo
Cited Statute
Civil Procedure Rules 2010
Judge Name
- Jo Mboya
- Oguttu Mboya
Passage Text
- Whereas, a dismissal which is done in the absence of the Parties or one of the Parties, is amenable to be set aside pursuant to an application under Order 12 Rule 7 of the Civil Procedure Rules 2010, a Dismissal for want of prosecution, made and/or undertaken in the presence of the Parties leads to an Inter-Partes judgment, in the nature of a Dismissal and same does not lend itself to setting aside.
- It is to some extent true to say mistakes of Counsel as is the present case should not be visited upon a party but it is equally true when Counsel as agent is vested with authority to perform some duties and does not perform as principal and does not perform it, surely such principal should bear the consequences.
- It is not enough for a party in litigation to simply blame the Advocates on record for all manner of transgressions in the conduct of the litigation. Courts have always emphasized that parties have a responsibility to show interest in and to follow up their cases even when they are represented by counsel.