[2022] KEHC 11925 (KLR)

First Western Investment Company Limited v Equity Bank Limited & 3 others (Civil Case 154 of 2013) [2022] KEHC 11925 (KLR) (Commercial and Tax) (21 July 2022) (Ruling)

Neutral citation: [2022] KEHC 11925 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Commercial and Tax

Civil Case 154 of 2013

WA Okwany, J

July 21, 2022

Between

First Western Investment Company Limited

Applicant

and

Equity Bank Limited

Respondent

and

Dr. Mukhisa Kituyi

1st Third party

Ambre Investments

2nd Third party

Benson Sande Ndete

3rd Third party

Ruling

1. This ruling is in respect to applicant’s application dated September 8, 2021 wherein the applicant seeks orders to set aside orders made on May 11, 2018 dismissing the applicants suit for want of prosecution. The applicant also seeks orders to reinstate the suit for hearing on merits.

2. The application is supported by the affidavit of the plaintiff’s advocate Mr Dennis Karani and is premised on the grounds:-A.The applicants suit was dismissed on May 11, 2018 for want of prosecution.B.The current advocate handling the matter on behalf of the applicant’s firm left the firm without updating the status of the matter in his hand-over report.C.The current advocate handling the file, while preparing a status update report found out that the suit had been dismissed for want of prosecution on the May 11, 2018 after perusal of the court file.D.The mistake of the advocate should not be visited upon the client.E.The applicant’s suit had already been certified ready for hearing and it is still desirous to prosecute the suit to its conclusion.F.The applicant has an arguable case with high chances of success and it therefore fair and in the interest of justice that the plaintiff’s suit be reinstated and determined on merit.G.No prejudice would be suffered by the respondents if this application is allowed.

3. The application is also supported by the plaintiff’s Director Mr David Sifuna Wekesa who reiterates the grounds listed in the application and the advocates supporting affidavit.

4. Mr Wekesa avers that the mistake on the part of the plaintiffs previous advocate caused the delay in progressing the matter.

5. The respondent opposed the application through the replying affidavit of its Assistant Manager, Legal Services, Mr Samuel N Kimani who stated that:-I am advised by our advocates on record whose advise I believe to be true, that:-a.On May 11, 2018, our advocates appeared before Honourable Lady Justice R Ngetich for Notice to Show cause why the suit should not be dismissed.b.The plaintiff/applicant (hereinafter called the applicant) was not present in court to prosecute their case.c.The suit, having been unprosecuted for over 3 years with no explanation whatsoever from the applicant, was dismissed with costs to the defendant. (A true copy of the dismissal order is annexed herewith and marked SNW1).2. From the date of the dismissal, the applicant made no necessary efforts to try and reinstate the suit until three and a half years later.3. Indeed, what is even more appalling is that the affidavit in support of the notice of motion application has been signed by an advocate from Wandabwa advocates.4. There is no affidavit by the plaintiff’s themselves on record. From this, it is clear that the plaintiff is not interested in the reinstatement of the matter.5. The fact that the present application has been brought over 3 years after the suit was dismissed and over 6 years since the suit last came up in court shows the level of disinterest in the suit by the applicant.6. This suit was filed in 2013 and it is now over years since the suit was instituted against the defendant/respondent(hereinafter called the defendant). The applicant has never shown any seriousness in prosecuting the suit.7. The applicant has been a slothful plaintiff and therefore, reintroducing this 8-year-old matter into the system would prejudice the administration of justice by further clogging the wheels of justice.8. I am advised by my advocates on record whose advise I believe to be true that;a.The applicant is barred by theLimitation of Actions Act from prosecuting this case since the cause of action herein arose on or about the April 26, 2008 and the plaint was filed on April 22, 2013. b.The Limitation of Actions Act provides that an action founded on a contract may not be brought after the end of six years from the date on which the cause of action accrued.c.The subject matter of this suit being Kshs 5,500,000. 00 the is well within the jurisdiction of the Magistrate’s Court, specifically the Senior Resident Magistrates Court as provided under section 7 of the Magistrates' Courts Act, 2015 and the same should have been filed there.d.This matter should not be entertained by this honourable court.9. The applicant has come to this honourable court with unclean hands casting very grave and negative aspersions alleging unprofessional conduct on the part of the former advocate in their firm without adducing any evidence and without revealing their identity.10. Further, it is stupefying that the purported hand-over note alluded to in paragraph 5 of the supporting affidavit of Dennis Karani has not been produced as evidence before this hourable court.11. The reasons given in the supporting affidavit of Dennis Karani dated September 8, 2021 are scandalous, far-fetched and unsubstantiated and they do not amount to an excusable mistake or error warranting the exercise of the discretion of this honourable court in favour of the applicant.12. The court have also emphasized that failure by the plaintiff to take to progress the suit towards the seat of justice runs contrary to the overriding objectives stipulated in section 1A, 1B and 3A of the Civil Procedure Act which courts have affirmed as the quintessential building pillars to the expeditious dispensation of justice.13. In any event, the application has been filed after unreasonable delay.14. The applicant has not extracted and exhibited the order that is seeks to set aside which omission is fatal to their application before court.15. The applicant’s failure to pursue its case against the defendants has occasioned undue prejudice to the defendant’s right to a fair and expeditious trial.

6. Parties canvassed the application by way of written submissions which I have considered.

7. The main issue for determination is whether the plaintiff has made out a case for setting aside of the orders of May 11, 2018 and the reinstatement of its suit that was dismissed for want of prosecution.

8. It is trite that the court has the discretion to set aside orders the discretion must however be exercised judiciously and only in the most deserving cases where sufficient reasons have been advanced.

9. In the present case, it is noteworthy that the suit was dismissed on May 11, 2018 application filed on September 8, 2021, more 3 years after the dismissal of the suit for want of prosecution.

10. The applicant appears to be blaming its previous advocates on record for the delay. Indeed it is trite that the mistakes by an advocate should not be visited on the client. However, it is not in every case that a mistake committed by an advocate would be a ground for setting aside orders of the court. In Savings and Loans Limited v Susan Wanjiru Muritu Nairobi (Milimani) HCCS No 397 of 2002 Kimaru, J (as he then was) expressed himself as follows:-“Whereas it would constitute a valid excuse for the defendant to claim that she had been let down by her former advocates failure to attend court on the date the application was fixed for hearing, it is trite that acasebelongs to a litigant and not to heradvocate. A litigant has a duty to pursue the prosecution of his or hercase. Thecourtcannot set aside dismissal of a suit on the sole ground of a mistake bycounselof the litigant on account of suchadvocate'sfailure to attendcourt. It is the duty of the litigant to constantly check with her advocate the progress of her case. In the presentcase, it is apparent that if thedefendanthad 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 thedefendantto be prompted to action by theplaintiff'sdetermination to execute the decree issued in its favour, is an indictment of thedefendant. 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 thecourt, it would be a travesty of justice for thecourtto exercise its discretion in favour of such a litigant. (Emphasis added)

11. I am in agreement with the above decision. The client is expected to keep abreast with his case at all times in order to find out its progress. I this regard, the plaintiff was expected to be constantly in touch with the advocates in order to keep tabs on the case. The scenario presented in this matter is that of a litigant who sat pretty and did not bother to find out the status of its case for years on end.

12. I am not satisfied that plausible reasons have been placed before this court to warrant the exercise of the discretion to set aside the orders of May 11, 2018. I find that the delay is in ordinate and that the reinstatement of the suit, which was filed way back in 2013, will prejudice the defendant who had moved on after its dismissal in 2018.

13. I find that the application is not merited and I dismiss it with costs to be defendant.

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 21ST DAY OF JULY 2022. WA OKWANYJUDGEIn the presence of: -Ms Otieno for Wandabwa for plaintiff/applicant.No appearance for defendants.Court Assistant- Sylvia.