https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8585

Shanghavi & another v Victoria Commercial Bank Ltd & another (Commercial Application E006 of 2022) [2026] KEHC 8585 (KLR) (Commercial and Tax) (12 June 2026) (Ruling) Neutral citation: [2026] KEHC 8585 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Commercial Courts) Commercial and Tax Commercial Application E006 of 2022 FG Mugambi, J June 12, 2026 Between Jayesh Umedlal Shanghavi 1st Plaintiff Nina Jayesh Shanghavi 2nd Plaintiff and Victoria Commercial Bank Ltd 1st Defendant The Good Earth Group Limited 2nd Defendant Ruling Background 1.This ruling is with respect to the application dated 3rd July 2025 brought under Order 12 Rules 3 and 7, and Order 51 Rule 1 of the Civil Procedure Rules together with Sections 1A, 1B, and 3A of the Civil Procedure Act. The Plaintiffs, who are the Applicants herein, seek to set aside the orders issued on 1st July 2025, reinstate the suit, and be granted an opportunity to prosecute their case on its merits. It is opposed through a Replying Affidavit sworn by Clement Gitau, the Recoveries Manager of the Respondent Bank. 2.The application arises from the dismissal of the suit on 1st July 2025 for non-prosecution. No written submissions were on record as at the time of writing this ruling despite the directions of this Court issued on 26th October 2025. 3.The Court is called upon to determine whether the Applicants have established sufficient grounds to warrant reinstatement of the suit. 4.The record speaks for itself. This suit was commenced by a Plaint dated 14th January 2022. Following several mentions on a pending application dated 13th October 2022, the Court delivered a ruling on 8th December 2023 and fixed the matter for hearing on 20th February 2025. On the scheduled hearing date, the Plaintiffs filed a Notice of Change of Advocates on the eve of the hearing. Ms. Abok appeared holding brief for Mr. Kaburu, while Mr. Koech represented the Defendants and Mr. Swaka appeared for the outgoing Advocates. 5.The Court allowed Mr. Swaka’s application to cease acting and granted an adjournment, which was vehemently opposed, due to the application having been filed on the eve of the hearing. This was despite the fact that the hearing date had been taken in November 2024, about 3 months prior to. The Court noted that new counsel was not ready to proceed having just been instructed but cautioned that no further adjournments would be entertained. 6.On 1st July 2025, the matter was again listed for hearing. Mr. Mugambi appeared holding brief for Mr. Kaburu, while Mr. Koech represented the Defendants. Mr. Mugambi sought an adjournment on the ground that Mr. Kaburu was indisposed. The application was strongly opposed. The Court directed Mr. Mugambi to make arrangements for alternative representation or appear. When the matter was recalled at 12:15 p.m., neither Mr. Mugambi nor any other counsel appeared, prompting the Defendants to successfully move for dismissal of the suit. Analysis and Determination 7.The principles governing reinstatement of suits were set out in Ivita V Kyumbu, [1984] KLR 441, where the Court held:“The test is whether the delay is prolonged and inexcusable, and, if it is, can justice be done despite such delay. Justice is justice to both the Plaintiff and Defendant; so both parties to the suit must be considered and the position of the judge too. … The Defendant must however satisfy the court that it will be prejudiced by the delay or even that the plaintiff will be prejudiced. He must show that justice will not be done in the case due to the prolonged delay on the part of the plaintiff before the court will exercise its discretion in his favour and dismiss the action for want of prosecution. Thus, even if delay is prolonged if the court is satisfied with the plaintiff's excuse for the delay, the action will not be dismissed, but it will be ordered that it be set down for hearing at the earliest available time.” 8.Applying the above principles, I note that this matter arises from a dispute over a facility extended by the Defendant Bank to the Plaintiffs. It has not been controverted that the Plaintiffs have benefited from status quo orders throughout the pendency of the suit. I note that a sick sheet dated 30th June 2025 has been filed in Court. I have not been told that the said evidence was served upon Counsel for the Defendant on the day that the matter came up for hearing in July and if so, why the same was not done until this application was filed. 9.I cannot therefore blame Counsel for the Defendant for his apprehension that the same was a delay strategy by the Plaintiffs, for them to continue enjoying the status quo orders that they had enjoyed for almost 4 years as the suit remained pending. The Defendants have suffered prejudice from the continued delay since the loan remains unpaid. One would have thought that the Plaintiffs would be keen to have the matter proceed but that does not appear to be the case. 10.Furthermore, Mr. Mugambi, having attended the call-over, ought to have appeared in open court to confirm counsel’s indisposition and serve the medical sick note dated 30th June 2025 upon his counterpart and even upon the Court. This was not done. Conclusion 11.Nonetheless, in the interests of justice and for finality in the matter, I will give the Plaintiffs the benefit of doubt on account of counsel’s illness. However, the Respondents are entitled to compensation for the inconvenience and prejudice suffered. 12.Final Ordersi.The application dated 3rd July 2025 is hereby allowed.ii.The suit is reinstated for hearing on its merits and the ex parte proceedings are hereby quashed.iii.The status quo orders previously in place are however discharged forthwith.iv.The Respondents are awarded getting‑up fees of Kshs. 40,000/= for the inconvenience and prejudice caused to them.v.The matter shall be set down for hearing at the earliest available date. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 12TH DAY OF JUNE 2026.F. MUGAMBIJUDGE