[2019] KEELC 3570 (KLR)
The court found that the applicant failed to provide any explanation for the one-year delay in prosecuting the application to set aside the dismissal. Although the applicant indicated willingness to settle the debt and ongoing negotiations, the court held that such negotiations do not justify reinstatement of a suit...
Source-derived case information.
- Citation
- [2019] KEELC 3570 (KLR)
- Parties
- Plaintiff: David Kinyua Bedford; Defendant: Co-operative Bank of Kenya
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Chuka
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 155 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Set Aside Dismissal and Reinstate Suit
- Outcome
- application dismissed
- Judges
- FM Njoroge
- Legal Topics
- Reinstatement of Suit, Dismissal for Want of Prosecution, Out of Court Settlement, Delay in Prosecution, Bank Debt Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
David Kinyua Bedford
Plaintiff
Co-operative Bank of Kenya
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Dismissal and Reinstate Suit
Legal Issues
- 1 Whether the court should set aside or review the order dismissing the suit for want of prosecution.
- 2 Whether sufficient reason exists to reinstate the suit for hearing on merit.
- 3 Whether the delay in prosecuting the application is excusable.
Ratio Decidendi
The court found that the applicant failed to provide any explanation for the one-year delay in prosecuting the application to set aside the dismissal. Although the applicant indicated willingness to settle the debt and ongoing negotiations, the court held that such negotiations do not justify reinstatement of a suit dismissed for want of prosecution, especially in the absence of a satisfactory explanation for delay. The court emphasized that parties are free to negotiate and settle outside court at any time, but the judicial process should not be used as a negotiating platform. Consequently, the application was dismissed for lack of merit and unexplained delay.
Court Disposition
application dismissed
Orders
- The application dated 3rd May, 2018 is dismissed.
- No order as to costs in respect of this application only.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT CHUKA
CHUKA ELC CASE NO 155 OF 2017
FORMERLY MERU ELC CASE NO. 106 OF 2012
DAVID KINYUA BEDFORD..................................................PLAINTIFF
VERSUS
CO-OPERATIVE BANK OF KENYA.................................DEFENDANT
RULING
1. This application is dated 3rd May, 2018 and seeks orders:
1. That the honourable court be pleased to set aside/review the orders issued on dismissing this suit for want of prosecution.
2. That consequently the honourable court be pleased to reinstate by (sic) his matter for hearing on merit.
3. Costs be in the cause.
2. The application is supported by the affidavit of David Kinyua Bedford, the applicant sworn on 3rd May, 2019 and has the following grounds:
a) That this application is meritorious as the parties are negotiating out of court.
b) That reinstating this suit shall facilitate fast and affective negotiation of this suit.
c) That I am ready to settle what is owed to the bank at any moment now.
d) That no party shall be prejudice (sic) if the orders are granted.
e) That there is sufficient reason why this application ought to be allowed.
3. During the date for interpartes hearing Advocate Kirimi, representing the plaintiff/applicant, told the court that the parties have agreed to have the application allowed. Advocate Gikunda, holding brief for Advocate Mugambi, for the defendant/respondent, told the court that he had limited instructions and left it to court to make its decision.
4. I note that in his grounds on the face of the Notice of Motion, the applicant is unequivocal that he is willing to settle the debt he owes the bank and that the parties are negotiating a settlement. In the circumstances, I am hesitant to make this court a negotiating fulcrum or forum. I opine that the parties are at liberty to negotiate and settle this matter any time they wish.
5. I note that this application is dated 3rd May, 2018 and was filed on 4th May, 2018. It is, however, being prosecuted one year later through a Certificate of Urgency dated 8th March, 2019. This delay has not been explained. The suit itself was filed on 4th June, 2012, 7 years ago.
6. I refuse to allow this application.
7. In the circumstances, the application is dismissed.
8. I issue no order as to costs in as far as this application ONLY is concerned.
9. It is so ordered.
Delivered in open Court at Chuka this 6th day of May, 2019
in the presence of:
CA: Ndegwa
Kirimi for the Plaintiff/Applicant
Gikunda Anampiu h/b Mugambi for the Defendant/Respondent
P.M. NJOROGE
JUDGE