https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1536

Pasisco Eastern Africa Limited v Ecobank Kenya Limited (Civil Appeal E304 of 2020) [2026] KECA 1536 (KLR) (31 July 2026) (Judgment) Neutral citation: [2026] KECA 1536 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Appeal E304 of 2020 W Karanja, A Ali-Aroni & LM Njuguna, JJA July 31, 2026 Between Pasisco Eastern Africa Limited Appellant and Ecobank Kenya Limited Respondent (An appeal from the ruling and order of the High Court of Kenya at Nairobi (Muigai, J.) dated 15th April 2020 in HC Commercial & Admiralty No. 418 of 2014) Judgment 1.This is an appeal against a ruling and order issued by the High Court (Muigai, J.) on 15th April 2020, which upheld the court’s orders made on 27th July 2018, which dismissed the appellant’s suit for want of prosecution. 2.A brief history of the matter leading to the dismissal is as follows. The appellant, Pasisco Eastern Africa Limited, filed a suit against the respondent by way of a plaint dated 25th September 2014, which was later amended and dated 5th August 2016. The respondent filed an amended defence dated 18th August 2016, and an amended reply to defence dated 28th November 2016 was filed.The matter was scheduled for case management on 27th September 2016, but the same was adjourned as the appellant was not present. 3.The matter then came up on 14th October 2016 and 18th November 2016 for case management, but there was no appearance from the appellant. When the matter came up again in court on 6th June 2017, the appellant was ordered to comply with pre-trial directions within 60 days, in default of which the matter would stand dismissed, and a hearing was scheduled for 28th November 2017. 4.On 28th November 2017, the matter did not proceed as the day was declared a public holiday. The matter then came up in court on 27th July 2018 before Ngetich J. On the said date, the appellant was absent, but counsel for the respondent was present in court, and the matter was dismissed for want of prosecution. The appellant then filed an application for review dated 10th September 2018, seekingto vary, review, and set aside the order of dismissal made on 27th July 2018. 5.Upon hearing the parties, the learned Judge dismissed the appellant’s application for review. In dismissing the application, the learned Judge held that the appellant had failed to provide a reasonable explanation for the undue delay in prosecuting its suit, and, further, that the court found no new evidence or reasonable cause to warrant a review. 6.Aggrieved, the appellant has lodged the instant appeal citing the following 7 grounds:i.The learned Judge erred in law and fact in dismissing the application for reinstatement of the suit on insufficient evidence.ii.The learned Judge erred and misdirected herself in computing the time within which suits ought to be dismissed for want of prosecutioniii.The learned Judge erred in law and fact in failing to appreciate the plaintiff’s submissions on the issue of evidence of service of the Notice to Show Cause, particularly upon the offices of the advocates of the plaintiff, and that there was no return of service filed to confirm the sameiv.The learned Judge erred in fact and law in holding that other modes of finding out from the court about the cause list were sufficient when there was no evidence that the same was communicated to the advocate on record for the plaintiff.v.The learned Judge erred in failing to allow the plaintiff to prosecute its case to full hearing and determination while considering extraneous matter in dismissing the application for reinstatementvi.The learned Judge erred in failing to appreciate that there were certain intervening matters that made the suit not to proceed on certain dates fixed for hearingvii.The whole ruling is against the weight of evidence and steps taken by the plaintiff to prosecute the suit 7.Parties filed written submissions, and when the appeal came up for hearing, learned counsel Mr. Waweru appeared for the respondent, while there was no appearance for the appellant, though served with the hearing notice. 8.In its written submissions, the appellant submitted that its suit was active and that it had complied with all the directions given by the court. Specifically, the appellant contends that on 6th June 2017, it was granted 60 days to file a witness statement, which was filed on 7th July 2017 and served on the respondent on 25th July 2017, and a hearing date was scheduled for 28th November 2017. The appellant contends that the hearing date was subsequently vacated because it fell on a public holiday for the swearing-in of the President-elect. Following this development, the High Court prioritized election petitions arising from the 2017 general elections, which the appellant argues prevented the parties from setting the matter down for hearing. 9.The appellant avers that one year had not lapsed between the last abortive hearing date of 28th November 2017, and 27th July 2018, when the matter was dismissed for want of prosecution. The appellant further contends that it was denied the opportunity to defend the suit, as it was never served with the Notice to Show Cause. It avers that the registry served the notice at the appellant’s initial address despite a notice of Change of Address being indicated in subsequent pleadings and documents that are on record. The appellant has cited the case of Eurobank Limited vs. Shah Munge & Partners [2016] eKLR on the principles for consideration in dismissing a suit for want of prosecution, as well as the cases of Kenya Commercial Bank Ltd vs. Samson Keengu Nyamweya [2019] eKLR and John Harun Mwau vs. Standard Limited & 2 Others [2017] eKLR, for the submission that the interest of justice is best served by determining a case on its merits. 10.The respondent submitted that the suit stood dismissed on 6th August 2017, long before the order of 27th July 2018, as the appellant had failed to comply with the order of the court that was issued on 6th June, 2017 in which the court had ordered the appellant to comply with the pretrial direction within 60 days of the said date, failing which the suit would stand dismissed. 11.On the validity of the Notice to Show Cause, counsel submitted that the same was sent to the address provided by the appellant in its own pleadings and that the appellant failed to file a formal change of address of service. He submitted that between 7th July 2017 and 25th July 2018, the appellant took no steps to advance the case. The respondent cited the case of Aga Khan Health Services Kenya vs. Margaret Njoki Njung'e & 2 Others [2016] eKLR, in support of the submission that a party who willfully disregards or fails to comply with court orders (such as discovery) can be precluded from pursuing their claim. 12.We have carefully considered the appeal, the submissions from both parties, and the law. The main issue for determination is whether the trial court was justified in dismissing the appellant’s application to vary, review, and set aside the order of dismissal of the appellant’s suit for want of prosecution. 13.The circumstances under which this Court can interfere with the exercise of discretion by a superior court are well settled. As an appellate court, we are slow to interfere with the exercise of discretion by a trial Judge. We may do so only where the trial court misdirected itself in law, misapprehended the facts, took into account irrelevant considerations, failed to take into account relevant considerations, or where the decision is plainly wrong (see Mbogo vs. Shah [1968] EA 93). 14.In the case of Peter Keen Kiboi vs. Terence Naibei Lubusi [2020] KECA 941 (KLR), this Court held that an application for review can only be allowed under certain circumstances as follows:“The main grounds for review are: discovery of new and important matter of evidence; mistake or error apparent on the face of the record; and any other sufficient reason, and most importantly, the application has to be made without unreasonable delay.” 15.These are the grounds provided for under Order 45 of the Civil Procedure Rules. An applicant in an application for review must clearly state the specific ground or grounds upon which the review is sought. The appellant in this case did not allude to the discovery of any new or important matter, a mistake apparent on the face of the record or any sufficient cause to warrant a review of the orders. It premised its application on non-service of the notice to show cause. The trial court, nevertheless, found that the appellant had been served with the notice to show cause at the address indicated in its pleadings. 16.Based on the foregoing, we find that the learned Judge properly exercised her discretion in declining to review, vary, or set aside the order dismissing the suit for want of prosecution. We do not find any merit in the appeal and hereby dismiss it with costs. 17.Orders accordingly. DATED AND DELIVERED AT NAIROBI THIS 31ST DAY OF JULY 2026.W. KARANJA…………………………… JUDGE OF APPEALALI-ARONI…………………………… JUDGE OF APPEALL. NJUGUNA…………………………… JUDGE OF APPEALI certify that this is a True copy of the originalSignedDEPUTY REGISTRAR