African Wine Ltd v Equity Bank (Kenya) Ltd (Commercial Suit E011 of 2022) [2026] KEHC 12259 (KLR) (14 July 2026) (Ruling)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KIAMBU COMMERCIAL SUIT NO.E011 OF 2022 AFRICAN WINE LIMITED …..........…… PLAINTIFF/RESPONDENT EQUITY BANK (KENYA) LIMITED..… DEFENDANT/APPLICANT VERSUS RULING (Notice of Motion Application dated 30 th July 2025) 1. Before the Court is the Defendant’s Notice of Motion dated 30th July 2025. It is brought under Section 3A of the Civil Procedure Act, Order 17 rule 2(1) and (3), and Order 51 rule 1 of the Civil Procedure Rules. 2. The Defendant seeks for orders;- a) THAT this Honourable Court be pleased to dismiss the present suit for want of prosecution; and, b) THAT this Honourable court be pleased to award the costs of this Application and of the entire suit to the Defendant. 3. The Application is supported by the affidavit of Floranelly Murutani, the Defendant’s Credit Manager at its Buruburu Branch, sworn on 30th July 2025. HCCOMM. NO.E011 OF 2022 RULING - Page 1 of 14 4. She depones that the Plaintiff had redeemed the suit property through a third party purchaser and applied part of the sale proceeds to settle the outstanding loan in full, following which the Defendant discharged the charge over the property. 5. She further deponed that no step had been taken to prosecute the suit since 30th October 2023. According to her, the continued pendency of the suit subjected the Defendant to unnecessary costs, uncertainty and prejudice, while the Plaintiff would suffer no prejudice if the suit were dismissed for want of prosecution. 6. The Plaintiff opposes it through the Replying Affidavit of John Mwaura, a director of the Plaintiff, sworn on 7th November 2025. He deponed that the delay in prosecuting the suit was neither deliberate nor attributed solely to the Plaintiff. 7. He states that the parties had commenced settlement discussions after the Plaintiff sold the suit property and settled the outstanding loan, resulting in the discharge of the charge and resolution of the substantive dispute. 8. He further deponed that the parties were in the process of formalising a consent, with costs being the only outstanding issue. He therefore contended that the application had been overtaken by events and that dismissal would be inappropriate. 9. He also asserted that summons to enter appearance had not been served and no defence had been filed and maintained that each HCCOMM. NO.E011 OF 2022 RULING - Page 2 of 14 party bear its own costs. 10. The parties canvassed the Application by written submissions, which the Court has considered together with the pleadings, affidavits, annexures, and authorities placed before it. PARTIES’ SUBMISSIONS Applicants' submission 11. The Applicant submits that the suit is ripe for dismissal under Order 17 Rule 2 of the Civil Procedure Rules because no step has been taken to prosecute it since it was last mentioned on 30 th October 2023, a period exceeding the statutory threshold of one year. It relies on Argan Wekesa Okumu –vs- Dima College Limited & 2 Others [2015] eKLR to support the proposition that the party seeking dismissal must demonstrate prolonged inactivity and satisfy the court that the delay warrants dismissal. 12. The Applicant also cites Dock Workers Union of Kenya –vs- Kenya Ports Authority; Portside Freight Terminals Limited & Another (Interested Parties) [2022] KEHC 12951 (KLR), which emphasizes that dismissal may be justified where the delay is inordinate or unreasonable and the party responsible has not shown that it was prevented by sufficient cause from prosecuting the case. 13. Further reliance is placed on Utalii Transport Company Limited & 3 Others –vs- NIC Bank & Another [2014] eKLR, which identifies the relevant considerations as whether the delay is inordinate, intentional HCCOMM. NO.E011 OF 2022 RULING - Page 3 of 14 and inexcusable, whether it amounts to an abuse of the court process, and whether it creates a substantial risk to a fair trial or causes serious prejudice to the Defendant. 14. On whether sufficient cause has been shown, the Applicant challenges the Plaintiff’s explanation that the parties were pursuing an out of court settlement, contending that no correspondence, draft consent, proposed terms or other evidence of genuine negotiations has been produced. Making reference to The Registered Trustees of the Archdiocese of Dar-es Salaam –vs- The Chairman, Bunju Village Government & Others, Civil Appeal No.147 of 2006, for the principle that sufficient cause should be construed liberally only where negligence, inaction or lack of good faith cannot be attributed to the defaulting party. 15. The Applicant further submits that a bare assertion of settlement negotiations, without evidence of concrete steps or circumstances beyond the Plaintiff’s control, does not amount to sufficient cause and instead demonstrates a lack of diligence in advancing the suit. 16. The Applicant finally submits that the continued pendency of the suit is prejudicial to the Defendant and constitutes an abuse of the court process, particularly because the underlying dispute has allegedly been overtaken by events after the suit property was redeemed, the outstanding loan was cleared and the charge was discharged. It relies on Ivita –vs- Kyumbu [1984] KLR for the principle that prolonged delay must be satisfactorily explained and that litigation should be conducted expeditiously. The decision in Olumbe –vs- HCCOMM. NO.E011 OF 2022 RULING - Page 4 of 14 Obanyi [2025] KEHC 5386 (KLR) making reference that a party should not file a suit and leave it unprosecuted while it continues to hang over the opposing party. 17. The Applicant also refers to Allen –vs- Alfred McAlpine, Birkett – vs-James and AGIP (Kenya) Ltd [1967] 1 Q.B. 730 on the need to balance the prejudice caused to the Defendant by the delay against any injustice that dismissal may occasion to the Plaintiff. The Applicant contends that no substantial injustice would arise from dismissal, whereas allowing the dormant suit to remain pending would continue to burden the Defendant and undermine the efficient administration of justice. Respondents' submission 18. The Respondent submitted that the application for dismissal of the suit for want of prosecution should be determined in accordance with the settled principles governing the court’s discretionary power to dismiss suits for inordinate delay. Reliance was placed on Ivita v Kyumbu [1984] KLR, where the court held that the test is whether the delay is prolonged and inexcusable and, if so, whether justice can nevertheless be done despite the delay. It was further submitted that justice must be considered from the perspective of both parties and that where the plaintiff provides a satisfactory explanation for the delay and justice can still be achieved, the suit ought not to be dismissed. 19. The Respondent further relied on Wilson Kiarie Njoroge –vs- HCCOMM. NO.E011 OF 2022 RULING - Page 5 of 14 Family Bank Ltd & Another [2015] eKLR and Dock Workers Union of Kenya –vs- Kenya Ports Authority & Others [2022] KEHC 12951 (KLR), submitting that dismissal for want of prosecution is a justifiable limitation of a litigant’s right of access to court only where there has been inordinate and unreasonable delay. It was submitted that a plaintiff seeking the court’s discretion must demonstrate sufficient cause for the delay and satisfy the court that he or she was not negligent or inactive. 20. In addition, the Respondent relied on Jimmy Wafula Simiyu v Fidelity Commercial Bank Ltd [2014] eKLR, submitting that delay alone does not determine the fate of a suit and that the court retains discretion to excuse delay where it has been satisfactorily explained and where it causes no substantial prejudice to a fair trial. It was argued that the court should balance the prejudice that dismissal would occasion to the plaintiff against the hardship to the defendant, while bearing in mind the nature and importance of the case, the plaintiff’s right to be heard, and the constitutional principles under Articles 48 and 159. 21. On costs, the Respondent submitted that, pursuant to section 27 of the Civil Procedure Act, costs should follow the event and therefore be awarded to the successful party. ISSUES FOR DETERMINATION 22. Having considered the pleadings and the parties’ submissions, HCCOMM. NO.E011 OF 2022 RULING - Page 6 of 14 the following issues arise for determination:- a) Whether the suit should be dismissed for want of prosecution. b) Who should bear the costs of the Application and the suit. ANALYSIS AND DETERMINATION a) Whether the suit should be dismissed for want of prosecution 23. Order 17 rule 2(1) of the Civil Procedure Rules provides that, where no application has been made or step taken by either party for one year, the Court may give notice to the parties to show cause why the suit should not be dismissed and may dismiss it if sufficient cause is not shown. Under Subrule (3), any party to the suit may apply for its dismissal on the same basis. 2. Notice to show cause why suit should not be dismissed [Order 17, rule 2] (1) In any suit in which no application has been made or step taken by either party for one year, the court may give notice in writing to the parties to show cause why the suit should not be dismissed, and if cause is not shown to its satisfaction, may dismiss the suit. (2) If cause is shown to the satisfaction of the court it may make such orders as it thinks fit to obtain expeditious hearing of the suit. (3) Any party to the suit may apply for its dismissal as provided in sub-rule 1. HCCOMM. NO.E011 OF 2022 RULING - Page 7 of 14 24. The present motion is therefore properly before the Court at the instance of the Defendant. 25. The one year period is the statutory gateway, but it does not automatically determine an application brought under Subrule (3). Dismissal terminates a claim without a trial on its merits and is therefore a discretionary and serious remedy. 26. In Utalii Transport Company Limited & 3 Others –vs- Nic Bank Limited & Another [2014] KEHC 7255 (KLR) and Mwangi S. Kimenyi –vs- Attorney General & Another [2014] KEHC 4220 (KLR). They include whether the delay is inordinate and inexcusable, whether it amounts to an abuse of the Court process, whether it creates a substantial risk to a fair trial or serious prejudice to the defendant, the prejudice dismissal would cause the plaintiff, the explanation for the delay, and the overall demands of justice. These principles are:- i) Whether there has been inordinate delay on the part of the Plaintiffs in prosecuting the case; ii) Whether the delay is intentional, contumelious and, therefore, inexcusable; iii) Whether the delay is an abuse of the court process; iv) Whether the delay gives rise to substantial risk to fair trial or causes serious prejudice to the Defendant; v) What prejudice will the dismissal occasion to the plaintiff? vi) Whether the plaintiff has offered a reasonable HCCOMM. NO.E011 OF 2022 RULING - Page 8 of 14 explanation for the delay; vii) Even if there has been delay, what does the interest of justice dictate: lenient exercise of discretion by the court? 27. The same approach gives effect to Sections 1A and 1B of the Civil Procedure Act, which require the Court and the parties to facilitate the just, expeditious, proportionate, and affordable resolution of civil disputes. 28. It also accords with Article 159(2)(b) of the Constitution, under which justice shall not be delayed. The right to be heard under Article 50(1) is important, but it belongs to both sides and does not relieve a litigant who has invoked the Court’s jurisdiction of the responsibility to progress its case. 29. As to the length of delay, the Defendant relies on 30th October 2023 as the last activity on the Court record. The Plaintiff refers to a further appearance on 4th December 2023. Even if the Court gives the Plaintiff the full benefit of the later date, the suit remained inactive for about twenty months before the Application was filed on 5 th August 2025. That period comfortably exceeds the threshold in Order 17 Rule 2(1). Viewed against a suit filed in August 2022 whose interlocutory phase had substantially ended by September 2023, the delay is beyond ordinary or acceptable limits and is inordinate. 30. The earlier occasions when the Court was not sitting do not explain the material period. Those events occurred before the ruling of 29th HCCOMM. NO.E011 OF 2022 RULING - Page 9 of 14 September 2023 and before the subsequent mention dates. The inquiry under the present Application concerns the prolonged inactivity thereafter. 31. The Plaintiff’s submission is that the parties were settling the dispute. Settlement is encouraged and may properly explain some delay. It does not, however, place proceedings in abeyance indefinitely unless the Court orders a stay or the parties take verifiable steps towards concluding and recording the compromise. A litigant pursuing settlement remains obliged to keep the Court informed and, if settlement is not promptly achieved, to prepare the matter for hearing. 32. In Kenya Postel Directories Limited –vs- East African Portland Cement Company Limited [2023] KEHC 24603 (KLR), the Court considered a similar reliance on out of Court negotiations. It found that the plaintiff had not explained what it did after the negotiations stalled, nor why it failed to attend mentions or list the matter for hearing. The suit was dismissed after a period of inactivity of approximately one and a half years. 33. Here, the Plaintiff has not exhibited a draft consent, correspondence exchanged after December 2023, minutes of a meeting, a settlement proposal, or evidence of any unresolved term other than the general statement that costs remained in issue. Nor has it identified the date on which the alleged compromise was reached, what action was required to formalise it, who was responsible for that action, or why it could not be completed over the ensuing months. The assertion that HCCOMM. NO.E011 OF 2022 RULING - Page 10 of 14 the parties were actively formalising a consent is therefore unsupported. 34. Dock Workers Union of Kenya –vs- Kenya Ports Authority; Portside Freight Terminals Limited & Another (Interested Parties) [2022] KEHC 12951 (KLR) emphasised that a party seeking the Court’s indulgence must provide a full and satisfactory account of the delay and demonstrate sufficient cause, reasonable diligence, and absence of negligence or inactivity. 35. The Plaintiff’s evidence does not meet that standard. It offers no continuous account of the material period and discloses no matter beyond its control that prevented it from taking a step in the suit. 36. No consent has been filed or placed before the Court for adoption. More fundamentally, if the underlying dispute had been settled through payment of the loan and discharge of the charge, that circumstance did not render it proper for the suit to remain indefinitely on the register. 37. Turning to prejudice, the Defendant states that it continues to bear legal expense, uncertainty, and the burden of unresolved litigation. The Plaint includes not only injunctive relief but also prayers concerning account debits, general damages, costs, and interest. The discharge of the charge therefore did not, by itself, remove every pleaded claim. So long as the suit remained pending, the Defendant remained exposed to those claims and had to retain records and make provision for their defence. HCCOMM. NO.E011 OF 2022 RULING - Page 11 of 14 38. In Chemjor –vs- Kenya Commercial Bank [2024] KEHC 1148 (KLR), the Court recognised that pending cases can weigh on a party financially and psychologically and dismissed a suit where no meaningful step had been taken for over one year. 39. The Court has balanced that prejudice against the consequence of dismissal to the Plaintiff. The permanent injunction relating to the threatened statutory sale has been overtaken by the consensual sale and discharge. 40. The Plaintiff has not demonstrated that it has taken any step to quantify or prosecute its remaining monetary claims. It has also not explained why, if those claims remained important, it did not comply with pretrial requirements or seek a hearing date. Any prejudice caused by dismissal is therefore substantially the product of its own inactivity. 41. In this case, however, the statutory period was exceeded by a substantial margin; the delay is not satisfactorily explained; the alleged settlement activity is unproved; the Plaintiff’s own evidence confirms that the central commercial dispute was resolved; and the Defendant continues to face the burden of open litigation. Considered cumulatively, those circumstances justify dismissal. Costs 42. The Plaintiff argues that the Defendant should not receive costs HCCOMM. NO.E011 OF 2022 RULING - Page 12 of 14 because summons were not served and no defence was filed. As already found, the Defendant entered appearance and actively defended the interlocutory proceedings. The Court record also shows that it incurred the expense of the present Application only because the Plaintiff did not bring the suit to a procedural conclusion. There is no good reason to deny the successful Applicant its costs. CONCLUSION 43. From the foregoing analysis of the record of the Court, it is clear that the Plaintiff has not been diligent in prosecuting this Suit. The Plaintiff has not shown good and sufficient reasons for the lethargy in progressing this matter and the inordinate delay in moving the Suit forward since 30th October 2023. Perhaps, given that both parties agree that the Plaintiff managed to redeem the Suit Property by securing a purchaser and thereafter applying part of the proceeds to fully settling the outstanding loan amounts, the Plaintiff consequently lost interest in the matter. If that is indeed the case, the Plaintiff ought to have withdrawn the suit rather than leaving it pending but without progression; thus exposing it to the peril of dismissal for want of prosecution. 44. On the other hand, the Defendant has demonstrated that it has suffered prejudice and will continue to do so in a matter that the Plaintiff is not eager to prosecute. A suit that a Plaintiff is not eager to prosecute and may have indeed lost interest in should not be allowed to hang over a Defendant’s head like a veritable Sword of Damocles. HCCOMM. NO.E011 OF 2022 RULING - Page 13 of 14 Absent of motion and progression, such a Defendant should be relieved of the prospect of continued litigation in a matter that has exhibited prolonged delays and lethargy by the Plaintiff. 45. There can, therefore, be no other outcome other than for this Court to find that the Defendant/Applicant’s Notice of Motion Application dated 30th July 2025 is meritorious. Consequently, that Application is allowed on the following terms:- a) The present Suit and any pending interlocutory motions be and are hereby dismissed for want of prosecution; b) The Costs of the Suit as well as those of the Application dated 30th July 2025 are awarded to the Defendant and shall be borne by the Plaintiff. Orders accordingly, file closed accordingly. DATED, SIGNED, AND DELIVERED AT KIAMBU ON THIS 14TH DAY OF JULY 2026 …………………………………………………………… BAHATI MWAMUYE MBS JUDGE HCCOMM. NO.E011 OF 2022 RULING - Page 14 of 14