Introduction:
1. I have considered the grounds on the face of the NOM application dated 5th December 2024 and the further grounds set out in the supporting affidavit sworn on even date together with the Replying affidavit sworn in opposition to the same on 17th January 2025; the submissions of the parties and the applicable law.
Background:
2. Majanja, J. entered a ruling on 22nd March 2023 on an Application seeking for interim injunctive orders to restrain the Defendant/Respondent from exercising its statutory power of sale over a default of loan amounting to about Kenya Shillings Fifty Million (Kes. 50,000,000).
3. The Counsel for the Plaintiff was in attendance. The Court, thereafter, issued directions that parties comply with Order 11 of the Civil Procedure Rules and attend Court before the Deputy Registrar for Case Management Conference, which matter was mentioned on various dates particularly, on 26th April, 2023; 20th June 2023; 5th October 2023; 24th October 2023; 2nd November 2023; 22nd November 2023 and 4th March 2024. The respondent submitted, and the Applicant has not denied that neither the Plaintiff nor its Counsel attended court on the said dates up and until 18th April, 2024 when Counsel for the Plaintiff moved Court with a Motion to Cease Acting from the matter, which Application was allowed.
4. A Notice to Show Cause why the suit should not be dismissed was issued firstly on 2nd November 2023, and it was scheduled for hearing on 22nd November, 2023. The notice was served upon Counsel for the Plaintiff. No cause was shown by the 22nd November, 2023, however, it was re-issued by the Honourable Court on 4th March, 2024 and was scheduled for hearing on 18th April, 2024.
5. On the above date, Counsel Mr. Ojwang for the Plaintiff attended Court and noted that the Plaintiff was frustrating him, and therefore he was seeking leave of court to cease acting for the Plaintiff, which leave was granted. The Court directed that the Notice to Show Cause be re-issued and the Plaintiff be served directly. The same was scheduled for hearing on 5th November, 2024.
6. The Defendant’s Counsel proceeded and served the Notice to Show Cause to the Plaintiff and an Affidavit of Service was duly returned. The Plaintiff admitted that on that day it was not in court and accordingly the suit was dismissed.
7. The Applicant however claimed that it missed the Notice to Show Cause by inadvertence and seeks this Honourable Court to exercise its discretion to reinstate the suit.
8. The sole issue for determination is whether the Application dated 5th December 2024 is meritorious?
9. Re instatement of a suit is a matter of discretion. Section 3A of the Civil Procedure Act gives the court wide discretion over matters and issues that are before it, including the question as to whether it should or should not reinstate a suit dismissed on account of unreasonable delay on the part of the parties to prosecute it.
10. The factors to be considered for the purpose of reinstatement were discussed in: Ivita vs. Kyumbu [1984] KLR 441 (Chesoni, J.) as he then was. The court stated that the test, broadly speaking was whether the delay was prolonged and inexcusable.
11. Similarly, in Mobile Kitale Service Station vs. Mobil Oil Kenya Limited & another [2004] eKLR, the court stated that:
“Courts are under a lot of pressure from backlogs and increased litigation, therefore it is in the interest of justice that litigation must be conducted expeditiously and efficiently so that injustice caused by delay would be a thing of the past…”
12. In the present matter regarding the length of delay, I must re state that Notice to Show Cause was issued three (3) times. Firstly, on the 5th November 2023 which came up for hearing on 22nd November 2023; Secondly, on the 4th March 2024 which came up for hearing on 18th April 2024 and lastly on the 18th April, 2024 which came up for hearing on 5th November 2024. In all these instances, no cause was shown, the Applicant did not appear in Court and hence the dismissal of the suit.
13. I do not think the Plaintiff has provided an adequate explanation for the above non-attendance to show cause. The prayer that this court ought not visit the mistakes of its advocates on the Applicant is not tenable given the numerous opportunities provided by the court.
14. While I am cognizant that the case belongs to the litigant and not the Advocate, a litigant retains an Advocate to act as an agent on his behalf. That agent is responsible for the case on behalf of the client and a litigant ought to select his advocate carefully.
15. Further, it is incumbent upon a Plaintiff to adduce sufficient and plausible explanation that are demonstrated and persuasive to the Court. In Toroitich Misoi Mereng v Simeon Kiprotich Katam [2019] KEELC 3495 (KLR) the court quoted with approval the decision in Shah v Mbogo & Another [1967) EA 1116, on the matter of the discretion of the Court, where the court stated the following: -
‘‘The discretion is intended so as to be exercised to avoid injustice or hardship resulting from inadvertence or excusable mistake or error but is not designed to assist a person who has deliberately sought whether by evasion or otherwise to obstruct or delay the course of justice.’’
16. In the present matter, based on the record, since the conclusion of the Application seeking to restrain the Defendant from exercising its statutory power of sale on the 22nd March 2023, by the 5th November 2024, it has been one (1) year and six (6) months since the Plaintiff has taken any steps towards the prosecution of its case.
17. In fact, to the contrary the counsel for the Applicant admitted that it had not received any instructions from his client, the applicant, and even filed an application to cease acting because he was unable to proceed.
18. Noting the above timelines, I find that the that the said period of delay, as stated above is prolonged. As to whether the delay is excusable, given that this court has afforded the Applicant several opportunities to show cause why the suit ought not to be dismissed, and given its failure to appear on each and every occasion, I do not think that the Plaintiff reasons for delay are excusable or justified.
Conclusion:
19. Finally, I am persuaded that the Plaintiff has not made sufficient efforts to prosecute its suit over the period of time from inception to present. I am satisfied that the Application dated 5th December 2024 is without merit and the same is dismissed with costs.
20. The file is marked as closed.