Automated Summary
Key Facts
The court ruled on a review application by Martin Wainaina Mathenge, who sought to overturn the dismissal of his case for non-attendance during a virtual hearing on 17/10/2023. The Plaintiff's counsel lost internet connectivity shortly after 9:00 AM on the hearing date, leading to the dismissal. The court, citing Sections 3 and 3A of the Civil Procedure Act and Article 159 of the Constitution, found the explanation plausible and exercised its inherent powers to allow the review. The 17/10/2023 dismissal orders were vacated, and the original application dated 21/7/2023 was reinstated for hearing on merit.
Issues
- The primary issue was whether the Plaintiff established grounds for the court to review the dismissal orders issued on 17/10/2023. The Plaintiff argued the dismissal was based on an apparent error (confusing two applications) and cited Section 80 of the Civil Procedure Act and Order 45, which permit review for patent errors or other sufficient reasons. The court found the apparent error claim inapplicable but considered inherent powers under Sections 3 and 3A of the Act and Article 159 of the Constitution to allow the application, emphasizing access to justice and plausible explanations for non-attendance due to technical issues.
- The court evaluated the applicability of inherent powers under Sections 3 and 3A of the Civil Procedure Act, which empower courts to act in the interests of justice. Citing Articles 48 and 159 of the Constitution, the court found the Plaintiff's explanation for missing virtual proceedings (internet connectivity failure) plausible and ruled in favor of allowing the application to ensure access to justice, despite the dismissal for non-attendance.
Holdings
The Court allowed the Plaintiff's application for review, vacating the orders issued on 17/10/2023 and reinstating the Application dated 21/7/2023 for hearing on merit. The Court found the Plaintiff's explanation for failing to attend the virtual hearing (due to internet connectivity issues) plausible and held that the inherent powers of the Court under Sections 3 and 3A of the Civil Procedure Act and Articles 48 and 159 of the Constitution of Kenya justified the review to ensure access to justice.
Remedies
- The costs of the Application are to abide the outcome of the suit.
- The court vacated the orders issued on October 17, 2023, which had dismissed the Application for want of prosecution.
- The court reinstated the Application dated July 21, 2023, for hearing on its merits.
Legal Principles
The court applied judicial review principles under Section 80 of the Civil Procedure Act and Order 45 CPR, emphasizing that review is permissible for apparent errors on the face of the record or any other sufficient reason. It cited precedents including Ajit Kumar Rath Vs. State of Orisa (India) and Shanzu Investments Ltd Vs. Commissioner of Lands, noting that courts have unfettered discretion to review orders for sufficient reasons. The inherent powers doctrine under Sections 3 and 3A of the Civil Procedure Act were also invoked to prevent abuse of process and ensure justice.
Precedent Name
- Ajit Kumar Rath Vs. State of Orisa & Others
- Stephen Wanyoike Kinuthia (suing on behalf of John Kinuthia Marega (deceased)) Vs. Kariuki Marega & Another
- Wangechi Kimita & Another Vs Mutahi Wakabiru
- Shanzu Investments Ltd Vs. Commissioner of Lands
Cited Statute
- Constitution of Kenya
- Civil Procedure Act
- Civil Procedure Rules
Judge Name
JG KEMEI, J
Passage Text
- The Applicant relied on Sections 3 and 3A of the Civil Procedure Act which provides for inherent powers of this Court that nothing shall limit or otherwise affect the inherent power 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.
- Accordingly, the Application succeeds and it is allowed to the extent that the orders of this Court issued on 17/10/2023 are vacated and the Application dated 21/7/2023 is reinstated for hearing on merit.
- It is trite that a Court can review its orders for any other sufficient reason as provided for under Order 45 Civil Procedure Rules above.