[1992] KEHC 16 (KLR)
The court found that the applicant failed to provide a satisfactory explanation for the prolonged delay in seeking to set aside the dismissal of his earlier application. The illness claimed by the applicant did not justify his complete inaction for over two years, especially as he was aware of the order made against...
Source-derived case information.
- Citation
- [1992] KEHC 16 (KLR)
- Parties
- Applicant: Wandiema; Respondent: Barclays Bank of Kenya Ltd
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Bankruptcy Cause 5 of 1989
- Procedural Posture
- Bankruptcy Cause / Ruling on Application to Set Aside Dismissal
- Outcome
- application dismissed with costs
- Legal Topics
- Setting Aside Orders, Delay in Filing, Dismissal of Applications
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Wandiema
Applicant
Barclays Bank of Kenya Ltd
Respondent
Procedural Posture
Bankruptcy Cause / Ruling on Application to Set Aside Dismissal
Legal Issues
- 1 Whether the applicant has provided sufficient cause to set aside the dismissal of his earlier application.
- 2 Whether the delay in bringing the present application is excusable.
Ratio Decidendi
The court found that the applicant failed to provide a satisfactory explanation for the prolonged delay in seeking to set aside the dismissal of his earlier application. The illness claimed by the applicant did not justify his complete inaction for over two years, especially as he was aware of the order made against him. The court further held that the timing of the application was prompted solely by the threat of advertisement of the Receiving Order, rather than any genuine intent to prosecute his case. The applicant's last-minute request for adjournment to obtain counsel was deemed a delaying tactic. Accordingly, the application was dismissed for want of merit and inordinate delay.
Court Disposition
application dismissed with costs
Orders
- The application dated 11.6.92 is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
13 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Bankruptcy Cause 5 of 1989
Wandiema ...................................................................................................... APPLICANT
VERSUS
Barclays Bank of Kenya Ltd .............................................................. RESPONDENT
RULING
Two and a half years ago the Applicant filed an application which was to be heard on 14. 12. 89. He failed to turn up and the application was dismissed. He has now applied to have it set aside on the grounds that he was ill at the time from swollen legs and stomach and continued to suffer from the same ailment for two subsequent years. This is his reason for having done nothing till now. For the Respondent it has been submitted by Mr Gachuhi, learned counsel for the respondent, that the delay is inordinate and the application unmeritorious. I think that this is so and as submitted by Mr Gachuhi that the applicant’s present application had been prompted by the letter of the Official Receiver dated 25. 5.92 to the effect that the Receiving Order made against the Applicant would be advertised. This seems to me the only reason why the present application has been brought. The applicant does not deny that he was unaware of the order made on 14. 12. 84 in respect of which sick or not, he should and could have taken steps to have it set aside if he so wished. He has been content to go to sleep and has now woken up to step the threatened advertisement. The Applicant has finally asked for an adjournment to obtain the services of an Advocate, but this application he only made in the cause of his submission in reply. This is another delaying tactic and refuse his belated request.
Furthermore, his grounds in support of his application are quite clear. All in all, I think the application of the Applicant dated 11. 6.92 should be dismissed with costs.
It is so ordered.
June 16, 1992
Akiwumi, J