[2008] KEHC 2270 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NYERI

Civil Case 64 of 1995

KENYA COMMERCIAL BANK….…............…… PLAINTIFF

VERSUS

DAVID GACHUIGA )

WASHINGTON NDERITU KARIMI )

GICHURU KARIUKI ) ………..… DEFENDANT

RULING

Judgment was entered against the 2nd defendant on 19th July 1996. The second defendant filed an application by way of Chamber Summons dated 29th November 1999 praying for stay of execution pending the hearing and determination of that application and for setting aside the judgment entered against the second defendant. The application was filed under Certificate of urgency. The record of proceedings does not show when it was presented before the court, but on 2nd December 1999 an order was made in the presence of the applicant’s advocate and the respondent’s advocate that temporary stay of execution do issue to subsist upto 9th February 2000. On 9th February 2000 in the presence of the advocate for the plaintiff and second defendant a consent order was recorded in the following terms;-

“Order - By consent SOG. Stay of execution to remain in force until further orders of this court.”

The plaintiff has now filed a Notice of motion dated 28th January 2008 which is the subject of this ruling. The plaintiff seeks for an order of dismissal of the second defendant’s Chamber summons dated 29th March 1999 for want of prosecution. Although the prayer seeks the dismissal of the application dated 29th March 1999 in the supporting affidavit and the grounds of that application the plaintiff indicates that the application is dated 29th November 1999. Throughout the argument of the application it was clear that the parties were referring to the application dated 29th November 1999. It does therefore seem that the date in the prayer of the application is an error. The basis for the plaintiff seeking the dismissal of that application is that the second defendant has used that application to frustrate execution against him. It was argued that the second defendant has failed since the consent orders were recorded to fix that application for hearing. That the plaintiff’s effort to recover the debt herein by exercising its statutory power of sale has also been unsuccessful because of the existence of the second defendant’s application. The application was opposed by the second defendant. In opposing the application the second defendant relied on grounds of opposition. Looking at those grounds it is clear that the second defendant has included facts in those grounds which can only be done in an affidavit. For that reason the court strikes out grounds No. 3, 5 and 6. Ground 1 and 2 talk about the incompetence of the plaintiff’s application. In the submission raised by the second defendant there was no indication of why the plaintiff’s application is incompetent. Those grounds were therefore not proved. In the 4th ground the 2nd plaintiff stated that the application was frivolous and vexatious. This ground also the 2nd defendant failed to prove. The 7th ground was that the application does not meet the requirements of Order XVI rule 5 of the Civil Procedure Rules. It is correct that that order which was relied upon by the plaintiff relates to dismissal of suits for want of prosecution. I am of the view that reliance on that order does not render the plaintiff’s application to be incompetent. The 2nd defendant cannot be said to have been misled by reliance on that order to the extent that he did not know the application that he was meeting. It should be noted that the order of the court of 9th February 2000 quoted herein bore no relation to the 2nd defendant’s application dated 29th November 1999 If it did the record does not bear that out. That as it may be parties are not entitled to file applications then go to sleep on them. The 2nd defendant approached the court in November 1999 with that application on a Certificate of urgency. There is no sufficient reason that was given to the court why the 2nd defendant has to date failed to fix the application for hearing. Much of the reason given by the 2nd defendant’s counsel in submission relied on facts. There being no Replying affidavit such facts cannot be entertained. They simply are evidence from the bar. When parties come to court what they seek is justice. Justice is defined in the Blacks Law Dictionary as;-

“The fair and proper administration of the law.”

It cannot be said to be fair in the administration of the law to allow the 2nd defendant’s application to remain unprosecuted since November 1999 to date. It does seem that the 2nd defendant is mischievous in respect of that application. It was argued by the 2nd defendant that the plaintiff’s application was Res judicata, in view of this court’s ruling dated 18th July 2007 by the Hon. Mr. Justice Makhandia. I beg to differ. What was before the learned judge was an application to review the orders of 9th February 2000. What is before court the subject of this ruling is the dismissal of the 2nd defendant’s application dated 29th November 1999. As I stated before going by the record that is the proceedings the order by consent made on 9th February 2000 had no relation to the application of 29th November 1999. It may have influenced the order of that day but that is not apparent from the record. I therefore find that the plaintiff’s application is not Res judicata. On the whole the plaintiff’s application dated 28th January 2008 is merited. I therefore grant the following orders;-

1. That the 2nd defendant’s Chamber summons dated 29th November 1999 is hereby dismissed for want prosecution.

2. That the cost of the application dated 29th November 1999 and of the notice of motion dated 28th January 2008 are hereby granted to the plaintiff as against the 2nd defendant.

Dated and delivered at Nyeri this 30th June 2008.

MARY KASANGO

JUDGE