[2022] KEHC 9871 (KLR)

Maina v Barclays Bank of Kenya Limited & another (Commercial Case 432 of 2008) [2022] KEHC 9871 (KLR) (Commercial and Tax) (8 July 2022) (Ruling)

Neutral citation: [2022] KEHC 9871 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Commercial and Tax

Commercial Case 432 of 2008

DAS Majanja, J

July 8, 2022

Between

John Muruaru Maina

Plaintiff

and

Barclays Bank of Kenya Limited

1st Defendant

Lucy Wangui Irungu

2nd Defendant

Ruling

1. This suit was dismissed for want of prosecution on November 18, 2011 by Musinga J., following the 1st Defendant’s application dated September 16, 2011.

2. The Plaintiff filed the Notice of Motion dated May 16, 2012 seeking, inter alia, the following orders:(1)Spent.(2)That (the) Court set aside the Ruling and order made on November 18, 2011 dismissing the suit for want of prosecution and re instating the suit for hearing.(3)That leave be granted to the Plaintiffs/Applicants to amend their Plaint in terms and to the extent of the Draft Amended Plaint.(4)That cost(s) be in the cause.(5)That the draft amended Plaint be considered duly filed upon payment of the requisite court fees.

3. The application is supported by the Plaintiff’s affidavit sworn on May 16, 2013. The Plaintiff states that he has all along been interested in prosecuting the matter and had entrusted it to his former advocates only to find out the matter had never been prosecuted. He complains that he has never been informed of the progress or outcome of the case. He states that he filed a complaint against his former Advocate with the Advocates Disciplinary Committee. He further states that while the case was still pending the 1st Defendant proceeded to sell the suit property to the 2nd Defendant hence the need to amend the plaint in order for the court to determine the real issues in controversy. Further, that the application had been brought timeously and without delay as the suit had never been set down for hearing or pre-trial discoveries done.

4. The 1st Defendant opposes the application based on the Grounds of Opposition dated February 24, 2014. It states the application is an abuse of the court process and that the Plaintiff is guilty of laches. The 1st Defendant contends that the application will only prejudice and occasion injustice to it.

5. At the hearing of the application, both counsel made brief oral submissions reiterating the positions stated in their respective papers.

6. The Plaintiff filed this suit in 2008. He did not take any steps to prosecute the matter causing the 1st Defendant to move the court to dismiss the suit for want of prosecution three years later. It is worth noting that when the 1st Defendant’s application came up on November 18, 2011, the Plaintiff was represented at hearing. Musinga J., observed that, “When the application came up of for hearing Mr. Omwenga, who held brief for Mr Mang’erere for the plaintiff, sought an adjournment, saying that the plaintiff’s advocate wanted to file an application to cease acting for him.” The learned judge declined the application for adjournment and proceeded to grant the application thereby dismissing the suit.

7. The issue now is whether I should reinstate the suit on the grounds set out by the Plaintiff in his deposition. Just as the court has discretion to dismiss a suit, it has discretion to set aside the dismissal order and reinstate the suit. At the end of the day the court strives to do justice to the parties.

8. Turning to the grounds pleaded by the Plaintiff in the application, it is not correct to state that the Plaintiff never appeared in court when the application for dismissal came up of hearing. The Plaintiff was represented by an advocate who stated that he wished to withdraw from acting. Although the Plaintiff blames the advocate for his predicament, the Plaintiff does not explain when the dispute with his advocate arose and when he made the complaint against the advocate. He ought to have attached a copy of the complaint. His affidavit is threadbare on what steps he took as the client to follow up the matter since it was filed. He also does not disclose to the court when he knew the status of the matter.

9. The Plaintiff bears the blame for his own predicament. He failed to follow up his case until it was dismissed. A party has an obligation to follow up his matter as was held by the Court of Appeal in Rajesh Rughani v Fifty Investment Ltd and Another [2005] eKLR that, “It is not enough simply to accuse the Advocate of failure to inform as if there is no duty on the client to pursue his matter. If the Advocate was simply guilty of inaction that is not excusable mistake which the Court may consider with some sympathy”. The same court reiterated the position in Habo Agencies Limited v Wilfred Odhiambo Musingo [2018] eKLR that, “It is not enough for a party in litigation to simply blame the Advocates on record for all manner of transgressions in the conduct of the litigation. Courts have always emphasized that parties have a responsibility to show interest in and to follow up their cases even when they are represented by counsel.”

10. In essence, the Plaintiff has failed to give an explanation why he did not prosecute the suit for a period of three years until the suit was dismissed for want of prosecution. The Plaintiff’s position is not alleviated by the fact that the application to set aside the dismissal came a year and half later. The Plaintiff does not attempt to explain the efforts he made to resuscitate the suit over that period when he knew he had a disagreement with his advocate.

11. While the Plaintiff is entitled to have his day in court, the Defendant is also entitled to relief from anxiety of a suit that has been pending for a period of 13 years. I agree with the 1st Defendant that an unexplained delay of five years is inordinate and inexcusable. The prejudice on the 1st Defendant is understandable. I refuse to exercise discretion in the Plaintiff’s favour.

12. The Plaintiff’s Notice of Motion dated May 16, 2013 lacks merit. It is dismissed with costs to the 1st Defendant.

DATED AND DELIVERED AT NAIROBI THIS 8TH DAY OF JULY 2022. D. S. MAJANJAJUDGECourt of Assistant: Mr M. OnyangoMs Munda instructed by Koceyo and Company Advocates for the Plaintiff.Mr Mugo instructed by Miller and Company Advocates for the 1st Defendant.