[2019] KEHC 12444 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

CIVIL CASE NO.240 OF 2014

IN THE MATTER OF THE LAND ACT

IN THE MATTER OF THE LAND REFERENCE NUMBER KIAMBU/ESCARPMENT JET SCHEME/8

EQUATORIAL COMMERCIAL BANK LIMITED........................................PLAINTIFF

VERSUS

PICKWEL AND DEAL LIMITED..........................................................1ST DEFENDANT

PETER FRANCIS MBUGUA KIMANI..................................................2ND DEFENDANT

ANNE WAMBUI KIMANI........................................................................3RD DEFENDANT

RULING

1. Before this Court the Notice of Motion dated 14th September 2018, by which EQUATORIAL COMMERCIAL BANK LIMITED,(the Plaintiff/Applicant) seeks for Orders that:-

“(1) THAT this Honourable Court be pleased to dismiss the 2nd Defendant/Respondent’s Application dated 13/07/2017 for failure to abide with the Court’s Orders given on 18/07/2017.

(2) THAT this Honourable Court be pleased to discharge, vacate and/or set aside the interim stay orders issued on 18/7/2017.

(3) THAT the costs of this Application be borne by the 2nd Defendant/ Respondent.

(4) Such further other orders this Honourable Court may deem fit and expedient.”

2. The application was premised uponSections 1A, 1B, 3A and 63(e)of theCivil Procedure Act, Cap 21laws of Kenya andOrders Rule 11, 51 Rule 1of theCivil Procedure Rules 2010and all enabling provisions of the law, and was supported by the Affidavit of even date sworn byJOHN WAGECHE,the legal officer in the Plaintiff/Applicant Bank and the Further Affidavit dated 26th March 2019. The Respondents opposed the Application through the Replying Affidavit dated16th March 2019sworn byPETER FRANCIS MBUGUA KIMANI(the 2nd Defendant/Respondent herein). The application was canvassed by way of written submissions. The Plaintiff/Applicant filed its written submissions on 2nd May 2019, whilst the 2nd Defendant/Respondent filed his submissions on 4th June 2019.

BACKGROUND

3. On or about 4th October 2017 the Plaintiff/Applicant offered to the 1st Defendant PICKWELL AND DEAL LIMITEDa credit facility of up to Kshs.2,000,000. This facility was secured by way of a legal charge over the property known as Kiambu/Escarpment Jet Scheme/8 (hereinafter referred to as the suit property) which property was registered in the name of Peter Francis Mbugua Kimani (the 2nd Defendant). Additionally the 2nd Defendant and the 3rd Defendant (Anne Wambui Kimani) as Directors of the 1st Defendant gave two personal and continuing Guarantees to the Respondent Bank totaling Kshs.2,608,000 to secure repayment of the said loan facility together with interest bank charges, costs and expenses.

4. It is alleged that from 3rd October 2008 to date the loan facility has not been serviced and has fallen into arrears. This allegation has not been denied by the Defendants. Despite demand letters being issued, no steps were taken to regularize the loan facility. Therefore in exercise of its statutory power of sale the Plaintiff/Applicant attempted to sell the suit property by way of a public auction. This attempt was however not successful as no bids were received due to the interior location of the property.

5. The Plaintiff/Applicant then filed the application dated 13th February 2014 seeking to sell the suit property by way of private treaty. That application was heard by Hon Lady Justice Olga Sewe, who by her ruling delivered on 24th February 2017 allowed the application and made the following orders:-

“[a] That the Plaintiff be and is hereby allowed to sell the suit property, comprising of all that parcel of land known as Land Reference No. Kiambu/Escarpment Jet Scheme/8, by private treaty.

[b] That thereupon the buyer be registered as the owner of all that parcel of land known as Land Reference No. Kiambu /Escarpment Jet Scheme/8.

[c] That upon such sale, the title Deed now held by and in the name of the Defendant be cancelled and a new one be issued and registered in favour of the buyer.

[d] Costs of the application be paid by the Respondents.”

6. In that ruling of 24th February 2017 the Court found and held the Defendants despite having been properly served with mention and hearing notices failed and/or neglected to respond to the application. The Court therefore proceeded to hear the matter and issue orders ex parte.

7. Thereafter the 2nd Defendant filed the Notice of Motion dated 13th July 2017 seeking to stay execution of the ruling delivered on 24th February 2017. The application also sought that the ruling delivered on 24th February 2017 and all consequential orders be set aside “ex debito justitiae” and that the 2nd Defendant be granted leave to file his response to the originating summons dated 13th July 2014 and that the matter be heard inter partes on its merits. On 18th July 2017 the court granted interim Orders staying the execution of its ruling delivered of 24th February 2017 pending inter partes hearing and determination of the application dated 13th July 2017 and also gave directions on the filing of responses and written submissions in respect of that application.

8. From 18th July 2017 to date the Defendant have taken no steps to comply with the directions given by the court and have failed to file any response to or any written submissions in respect of the Notice of Motion dated 13th July 2017. The Plaintiff/Applicant then filed the present application dated 14th December 2018.

ANALYSIS AND DETERMINATION

9. I have carefully considered the rival written submissions filed in this matter as well as the relevant law. On 18th July 2017 the Court gave directions regarding the hearing and disposal of the 2nd Defendant/Respondent’s application dated 13th July 2017. The Respondents were directed to file their Reply to that application within 14 days. The Court also made orders that:-

“In the interim orders are hereby granted in terms of prayer (2) of the Notice of Motion dated 13/7/17 pending hearing inter partes of the said application.”

The Court then gave directions regarding the time lines for the filing of written submissions by the parties.

10. The Respondent took no action after these directions were given. They did not file their written submissions as directed by the Court. In fact the Respondent did nothing about their application for over one year. No doubt having obtained interim interlocutory orders the Respondent was content to enjoy the same indefinitely. It is only when the Plaintiffs filed this present application seeking dismissal of the Respondent’s application dated 13th July 2017, that the Respondent awoke from its slumber.

11. By the Replying Affidavit dated 16th March 2019 the Respondent placed the entire blame for their failure to file written submissions as directed by the court at the feet of their counsel on record at the time. Whilst it is true that the Respondent may have instructed counsel to act on their behalf this does not in any way absolve them party from following up their own case.

12. It is not enough for a party to lay the blame for any omissions on his advocate. The Respondent must show what tangible steps they themselves have taken to advance his matter. In SAVINGS & LOAN LIMITED –VS- SUSAN WANJIRU MURITU Nairobi (Milimani) HCCC NO.397 OF 2002, Hon Justice Luka Kimaru, stated thus:-

“Whereas it would constitute a valid excuse for the Defendant to claim that she had been let down by her former advocate’s failure to attend court on the date the application was fixed for hearing, it is trite that a case belongs to a litigant and not to her advocate. A litigant has a duty to pursue the prosecution of his or her case. The court cannot set aside dismissal of a suit on the sole ground of a mistake by counsel of the litigant on account of such advocate’s failure to attend court. It is the duty of the litigant to constantly check with her advocate the progress of her case. In the present case, it is apparent that if the defendant had been a diligent litigant, she would have been aware of the dismissal of her previous application for want of prosecution soon after the said dismissal. For the Defendant to be prompted to action by the Plaintiff’s determination to execute the decree issued in its favour, is an indictment of the Defendant. She had been indolent and taking into account her past conduct in the prosecution of the application to set aside the default judgment that was dismissed by the court, it would be a travesty of justice for the court to exercise its discretion in favour of such a litigant.”[own emphasis]

13. Likewise in DUALE MARY ANN GURRE –VS – AMINA MOHAMED MAHAMOOD & Another [2014]eKLR, Hon Justice Mutungi held as follows:-

“I have considered the material placed before the court and the reason offered by the Plaintiff for the delay in prosecuting the suit and I am not persuaded I should exercise my discretion in favour of the Plaintiff. Any person who initiates litigation against another has a duty and is under an obligation to ensure that the suit he has brought is expeditiously processed and prosecuted in the court by ensuring the necessary preparation and follow up is done to ensure there are no unnecessary delays. The overriding objective of rendering justice expeditiously as envisaged under Sections 1A and 1B Civil Procedure Act is anchored on the parties and their legal advisors playing their supportive roles in the chain of justice delivery and as the saying goes justice cuts both ways in every matter.

An advocate is the agent of the party who instructs him and such instructing client as the principal continues to have the obligation and the duty to ensure that the agent is executing the instructions given. In the case of litigation, the suit belongs to the client and the client has an obligation to do follow up with his Advocate to ensure the Advocate is carrying out the instructions as given. The litigation does not belong to the Advocate but to the client. If the Advocate commits a negligent act the client has an independent cause of action against the Advocate.

In the present application I would echo the words of P.N Waki, Judge of Appeal in BI-MACH ENGINEERS LTD –VS- JAMES KAHORO MWANGI (2011) eKLR where while commenting on the duty of a client vis-a vis counsel he observed as follows:-

The Plaintiff in the instant case is in a similar kind of situation where she merely states the advocate did not take any action to prosecute. “What did she herself do to prod her advocate.” Nothing as per her Replying Affidavit. Inaction on the part of the advocate without any explanation cannot constitute an excusable reason for delay. The Applicant referred the court to the decisions in JOHN GACHUMA MBUGUA & ANOTHER –VS- MARY RUGURU NJONGE RUKWARU –VS- ARITHO IGWETA & ANO. (2006) eKLR when while the judges refused to exercise their discretion to sustain the suits where the Respondents could not explain their delays. I approve of their decisions.

14. The Respondent in this case merely blames their advocate for failure to act without demonstrating what, if any tangible steps they themselves took to prosecute the application of 13th July 2017. There are no letters written either to the Advocate on the Court Registry seeking to be advised of the status of the suit. As stated earlier having obtained interlocutory orders in their favour the Respondents opted to sit back and do nothing to prosecute their own application.

15. The Respondents have also cited Articles 50 and 152(d) of the Constitution of Kenya to buttress their argument that the application dated 13th July 2017 ought not be dismissed. However directions given by a Court on the mode of disposal of an application cannot be deemed to amount to a “mere technicality”. Further the Court is also obliged to ensure that cases are heard and determined expeditiously in line with the overriding objectives contained in Sections 1A, 1B and 3Aof the Civil Procedure Act. The delay of over one year in complying with the Court’s directions given on 18th July 2017 in my view amounts to an inexcusable delay”. The explanation proffered for that delay is not persuasive at all as it is trite law that justice delayed is justice denied. The Respondent secure in the interim orders they had been granted chose not to prosecute its application.

16. Equity it is said does not aid the indolent. The 2nd Respondent sought and obtained equitable orders. He then went into slumber and did not prosecute his application. Meanwhile the Plaintiff bank were prejudiced as the facility was not being repaid and due to the existence of the interim orders the bank was not able to move to realize the security given for the loan taken. Having been totally indolent in prosecuting their matter the Respondents cannot now seek to have this court exercise its discretion in their favour.

17. The Respondent also pleaded that he was likely to suffer irreparable harm if the suit property which was the family home was disposed of by the bank.

The 2nd Defendant having voluntarily offered up the suit property as security for the loan, cannot now be heard to plead that the same is the family home. He was fully aware that the suit property was the family home when he opted to use it to secure the facility in question. The Respondent cannot now cry foul when the property faces sale for non-payment of the facility.

18. On the whole I find that the delay in prosecuting the Notice of Motion dated 13th July 2017 was both inordinate and inexcusable. That delay has occasioned great prejudice to the Plaintiff bank as the loan which was advanced way back in 2007 remains unpaid to date, over 10 years later. There is no evidence that any payments have been made towards clearing the loan facility. There exists the very real risk that the debt owed to the bank (principal plus interest incurred) may now well outstrip the value of the suit property. As such I do dismiss the application dated 13th July 2017 for want of prosecution. For avoidance of doubt the interim orders granted on 18th July 2017 are hereby vacated. Costs are awarded to the Plaintiff/Applicant.

Dated in Nairobi this 10th day of December 2019.

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Justice Maureen A. Odero