[2022] KEHC 15394 (KLR)

Maina Murage & Company Advocates v Mae Properties Limited (Civil Suit 1269 of 2002) [2022] KEHC 15394 (KLR) (Civ) (11 November 2022) (Ruling)

Neutral citation: [2022] KEHC 15394 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Suit 1269 of 2002

JK Sergon, J

November 11, 2022

Between

Maina Murage & Company Advocates

Plaintiff

and

Mae Properties Limited

Defendant

Ruling

1. This ruling is in respect to the notice to show cause which was issued on January 17, 2022 under the provisions of order 17, rule 2 of the Civil Procedure Rules, requiring the parties to show cause as to why the suit should not be dismissed for want of prosecution.

2. Maina Murage who is the proprietor of the plaintiff firm of advocates swore a replying affidavit dated June 17, 2022 in response thereto, stating inter alia, that before the notice to show cause came up for hearing, he had filed the application dated March 15, 2022 seeking the entry of judgment in his favour pursuant to the provisions of section 51(2) of the Advocates Act.

3. The deponent further states that the delay in prosecuting the suit was occasioned by the time taken in following up on the withdrawal of the notice of appeal dated March 16, 2020 and which had been filed by the plaintiff in a related matter between the parties herein, namely ELC Misc. Application No. 1519 of 2001 wherein the plaintiff was desirous of challenging the ruling of the ELC delivered on December 6, 2018 in respect to the advocate-client Bill of Costs.

4. The deponent further states that the High Court, Civil Division, had previously entertained a notice to show cause in the present suit and that the court by way of the ruling delivered on December 19, 2019 declined to dismiss the suit.

5. It is stated that soon thereafter, the world was faced with the global Covid-19 pandemic which paralyzed the court operations, thereby making it difficult for the plaintiff to pursue its claim.

6. It is also stated by the deponent that since then, he has been quite unwell and therefore unable to resume his normal work duties and therefore urges this court to vacate the notice to show cause and to set the application for entry of judgment down for hearing.

7. On its part, the defendant also put in the replying affidavit sworn by Vincent Odhiambo dated March 15, 2022 to support the dismissal of the suit on the basis that the delay in its prosecution is inordinate, inexcusable and prejudicial to the defendant.

8. The deponent further states that any outstanding costs owed to the plaintiff have been settled in full, thereby rendering the suit moot.

9. The deponent also states that the plaintiff has not offered any reasonable explanation for the delay in prosecuting the suit.

10. The parties herein through their respective advocates made brief oral arguments echoing the averments made in the affidavits and which arguments I have considered together with the affidavits on record.

11. Upon my perusal of the record, it is apparent that the suit was last in court on December 19, 2019 during which time the court delivered a ruling in respect to a notice to show cause which had been issued in the suit, thereby vacating the notice to show cause on the basis of the pending appeal arising from the abovementioned ELC matter on the advocate-client bill of costs and on the basis of the pending issue of interest on costs.

12. Upon my further study of the record, it is apparent that the intended appeal before the Court of Appeal was eventually withdrawn vide the notices of withdrawal dated March 16, 2020 and January 30, 2021 which goes to show that there is currently no appeal against the ELC decision.

13. It is also apparent from the record that the issue of interest on the costs is still pending, and that there is a pending application for judgment on the basis of the advocate-client bill of costs in ELC Misc. Application No. 1519 of 2001.

14. Upon my consideration of the explanation given by the plaintiff for the delay in prosecuting the matter and the evidence tendered in support thereof, I find the same to be reasonable and credible in the circumstances, notwithstanding the age of the suit.

15. In view of all the foregoing circumstances, I will grant the plaintiff a final opportunity to prosecute its case.

16. Consequently, the notice to show cause is hereby vacated on the condition that the plaintiff prosecutes its case within 120 days from this day, failing which the suit shall be dismissed with costs.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 11TH DAY OF NOVEMBER, 2022. J. K. SERGONJUDGEIn the presence of:...................for the Plaintiff...................for the Defendant