[2022] KEHC 15340 (KLR)

Mwaniki v Consolidated Bank Ltd (Civil Case 435 of 2007) [2022] KEHC 15340 (KLR) (11 November 2022) (Ruling)

Neutral citation: [2022] KEHC 15340 (KLR)

Republic of Kenya

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

Civil Case 435 of 2007

A Mshila, J

November 11, 2022

Between

David Wandore Mwaniki

Applicant

and

Consolidated Bank Ltd

Respondent

Ruling

1. This ruling is on a Notice to Show Cause issued by the court herein. The notice was supported by the Defendant vide an affidavit by Felix Murage dated March 29, 2022. In it he indicated that he is a debt recovery officer of the defendant and is aware that the Court issued a notice to show cause to the Plaintiff. The Plaintiff filed the suit on August 21, 2007 and the matter was scheduled for hearing on February 25, 2020 but was taken out of the cause list by consent. The matter was scheduled for mention on March 12, 2020 but there was no appearance by the parties but still the court listed the matter for hearing on July 14, 2020.

2. The said hearing for July 14, 2020 never proceeded. The Plaintiff took another period of over one year and two months before making an attempt to prosecute the case through a letter dated June 9, 2021 but filed on August 19, 2021.

3. The indolence of the Plaintiff in prosecuting the suit is manifested in the supporting affidavit of Mwangi Chege (former counsel to the Plaintiff) sworn on September 17, 2021 in the Application of even date seeking to cease acting for the Plaintiff.

4. The said counsel stated that despite making several attempts to seeking instructions from the Plaintiff, the Plaintiff failed to give instructions hence prompting him to file the said application seeking leave of this court to cease acting. The former advocate cannot therefore be faulted for failing to prosecute the matter on behalf of the Plaintiff after having made several attempts to seek instructions. The said advocates were granted leave to cease acting on November 2, 2021.

5. The plaintiff has since failed to prosecute the matter until prompted by the instant notice to show cause and is evident that the plaintiff has lost interest in prosecuting the suit herein. Meanwhile, the defendant is suffering prejudice and inconvenience by virtue of the pending suit which the Plaintiff is not keen to prosecute

6. In reply to the Notice to Show Cause, the plaintiff filed an affidavit dated March 1, 2022 where he asked this court to allow him to proceed with the hearing and determination of the suit. He indicated that this matter was partly heard and he testified on May 14, 2015 before Justice Ogola. That during his testimony his then advocate noted that the plaint did not refer to one of the accounts the subject matter herein and he therefore applied and was granted leave to file an Amended Plaint. The hearing was then adjourned to 24th September 2015.

7. His advocates complied with the courts directions but the file was reallocated to Justice Nzioka who on October 25, 2016 directed that the proceeding be typed and that he may be recalled as a witness and that the case be heard on January 31, 2017. That his advocates on record advised him that the file could not be traced, which led him to write a letter to the Deputy Registrar for intervention.

8. When the file was traced a hearing date was scheduled for February 25, 2020 and both his advocate and the advocate for the Defendant filed a consent in court seeking that the case be taken out of the cause list. The matter was then scheduled for hearing on July 14, 2020 but his advocate was bereaved and he informed the Defendant’s advocate on July 10, 2020.

9. Most recently on July 9, 2021 his advocate wrote to the Deputy Registrar seeking a hearing date. His advocates then made an application to cease acting for him due to some differences between them and the application was allowed.

10. He further indicated that from the record he has been keen to prosecute the matter and he has now instructed the firm of Kiarie Kariuki & Githii to act for him and they filed a Notice of Appointment dated February 14, 2022. He is thus ready and willing to proceed to hearing on a date that is convenient to the court and prays that the court does not deny him a chance to prosecute his case in the interest of justice.

Issues For Determination 11. Having considered the Application and the Replying Affidavit filed herein; the Court has framed only one issue for determination:i.Whether to discharge the Notice to Show Cause for dismissal of the suit for want of prosecution.

Analysis 12. Dismissal by the court of suits for want of prosecution is governed by Order 17 Rule 2(1) of the Civil Procedure Rules 2010 which provides that: -“In any suit in which no application has been made or step taken by either party for one year, the court may give notice in writing to the parties to show cause why the suit should not be dismissed, and if cause is not shown to its satisfaction, may dismiss the suit.”

13. In Argan Wekesa Okumu vs Dima College Limited & 2 others [2015] eKLR, the court observed: -“The principles governing applications for dismissal for want of prosecution are well settled and have been established by a long line of authorities. The applicant must show that the delay complained of is inordinate, that the inordinate delay is inexcusable and that the defendant is likely to be prejudiced by such delay. As such the 3rd defendant in this case must meet the burden of proof in seeking the dismissal of the Plaintiff’s case for want of prosecution see the case of Ivita –vs-Kyumbu (1984) KLR 441. Further to this, the decision of whether or not to dismiss a suit is discretionary and this Court must exercise such discretion judiciously. Additionally, each case must be decided on its own facts keeping in mind that a court should strive to sustain a suit where possible rather than prematurely terminating the same.”

14. The statutory threshold set out under Order 17 Rule 2 of the Civil Procedure Rulesis that a suit qualifies to be dismissed for want of prosecution if no application has been made or no step has been taken in the suit by either party for at least one year preceding the presentation of the application seeking dismissal of the suit. The court must however, consider the reasons advanced for the delay or failure to prosecute the suit. The delay must be excusable, reasonable and with just cause.

15. On examination of the record it is clear that the matter herein has not been prosecuted for over one year and it was the Defendant’s contention that the Plaintiff is not interested in prosecuting his case as evidence by the averments of his advocate when seeking leave to cease to represent him citing the lack of sufficient instructions. The Plaintiff on the other hand has indicated that he is willing to prosecute his case and is willing to proceed with the case on a date that this court affords.

16. It is this courts considered view that the Plaintiff has given an explanation that is found to be satisfactory; and is satisfied that it would be in the interest of justice, equity and conscience to allow the plaintiff prosecute his matter to its logical conclusion.

Findings And Determination 17. For reasons of the forgoing the Notice to Show Cause is hereby discharged nonetheless, on the following conditions;i.Hearing on February 23, 2023. ii.The costs shall be borne by the Plaintiffs.iii.Costs assessed at Kshs.10, 000 payable before the next hearing date.

Orders accordingly

DATED SIGNED AND DELIVERED ELECTRONICALLY AT NANYUKI THIS 11THDAY OF NOVEMBER, 2022. HON. A. MSHILAJUDGEIn the Presence of:Watiri h/b for Miss Githi for the PlaintiffTanui h/b for Ligame for DefendantCourt Assistant: LucyTanui: Pray for leave to substitute Defendant’s witness Mr. Billy Yubindi.Watiri: Not opposed.Court: Leave granted to the Defendant to substitute the witness. File and serve witness statement within 14 days.DATED SIGNED AND DELIVERED ELECTRONICALLY AT NANYUKI THIS 11THDAY OF NOVEMBER, 2022. HON. A. MSHILAJUDGE