[2004] KEHC 1270 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

MILIMANI COMMERCIAL COURTS

CIVIL SUIT NO 653 OF 2001

NAFTALI RUTHI KINYUA T/A CITADEL FREIGHTERS ….....……1ST PLAINTIFF

PETER MWANGI MBUTHIA ………………………….……………2ND PLAINTIFF

VERSUS

KENYA COMMERCIAL BANK LIMITED…….…………...…….1ST DEFENDANT

DANIEL NYANGOYA AUMA …..…………………………….…...2ND DEFENDANT

R U L I N G

The Plaintiffs Chamber Summons dated 15th October 2004 is brought under Order 9B rule 8 Order 21 Rule 22 of the Civil Procedure Rules, and Section 3A of the Civil Procedure Act.

The Plaintiff seeks an order to set aside the dismissal of this suit and a stay of execution for the taxed costs.

The 1st defendant by an application dated 11th July 2003 sought an order for the dismissal of the Plaintiff’s suit as against it for want of prosecution. By a ruling delivered on 11th November 2003 the court dismissed the suit. The said application had been served on the Plaintiff’s advocate who failed to attend court. After the said dismissal the 1st defendant’s counsel filed a Bill of Costs and on 4th December 2003 when the same was served on the Plaintiff’s advocate he declined to accept service on the basis that he was no longer acting for the Plaintiff. The Bill of Cost was eventually taxed.

It is in this background that the Plaintiffs seeks the exercise of the court’s discretion in their favour to set aside the said dismissal. The Plaintiff’s counsel said that the Plaintiffs did not deliberately try to evade justice but were let down by the mistake of their then advocate.

1st defendant’s counsel responded to the aforesaid argument by saying that the Plaintiff’s advocate was served with the application for dismissal and he was on record for the Plaintiffs and accordingly was their agent. He was of the view that the Plaintiff’s remedy was against their advocate for his negligence and not to have the dismissal set aside and in any case the present application is made one year later.

The 1st defendant advocate further submitted that the plaintiffs have filed another suit namely HCCC No. 173 of 2003 and have recently applied to amend the plaint and in that regard have lifted this cause of action to be included in that suit. This 1st defendant’s counsel felt was an abuse of the court process. The subject of the suit was an injunction to stop sale of the suit property but that property was sold on 27th February 2003, to revive this suit, counsel argued, would be an exercise in futility.

In regard to the taxed costs counsel argued that the plaintiff should challenge that taxation under the rules in the Advocates Remuneration Order.

I have considered the arguments presented before and the affidavit evidence, the argument made on behalf of the 1st defendant. I might add to that argument that the Plaintiffs should also take some of the blame for the situation they find themselves in. They failed to keep in contact with their counsel even by their own testimony in the affidavit in support the plaintiffs only discovered the dismissal in April 2004 when they instructed their present counsel.

I will decline to grant the Plaintiffs the prayer sought and in so doing will use the words of O’kubasu, J.A in the case ofJOHN ONGERI MARIARIA & OTHERS AND PAUL MATUNDURA CIV. APP. NO. 301 OF 2003;

“………….. I do not think the applicants have given sufficient explanat ion to warrant the court’s discretion being exercised in their favour. It is true that the court has unfettered discretion but like all judicial discretion must be exercised upon reason not capriciously. Even sympathy alone would not assist a party.

Justice must look both ways as the rules of procedure are meant to regulate administration of Justice and they are not meant to assist indolent.”

That quote I think say it all and the Plaintiff’s application will fail.

The plaintiff’s application dated 15th October 2004 is dismissed with costs to the 1st defendant.

Dated and delivered this 18th day of November 2004

MARY KASANGO

AG JUDGE