In the application dated 01.03.2023, the Plaintiffs seek, in the main to set aside the order dismissing this suit. The suit was dismissed on 27th February 2020. In the supporting affidavit of George Wachira, the Plaintiffs plead that the court set aside the dismissal order on the ground that they have shown diligence in prosecuting the case, that the dismissal order made through no fault of their own and that they are keen on prosecuting the suit, They state that they have paid the entire outstanding loan and urge the court that it is in the interests of justice that they be permitted to prosecute the suit.
The Defendants oppose the application on the basis of the replying affidavit sworn by the Legal Services Manager of the 1st Respondent. They urge that the Plaintiff have not made out a case for reinstatement of the suit and that the no action has been taken to reinstate the suit since it was dismissed. They contend that the action was prompted by action to exercise its statutory power of sale. They deny that the Plaintiff has paid off the loan.
I have considered the matter and I hold as follows. The Plaintiff was the beneficiary of an interim injunction in 2014 until the suit was dismissed. No effort has been made to explain the reason for failure to attend court in the deposition and apart from making general statement of its efforts to prosecute the suit. The Applicants have not pointed to any facts to support the assertion or given any reason why they failed to prosecute the suit. It is the duty of the parties to prosecute the suit. That duty is imposed not only the advocate on record by the client. In this case the suit was not only dismissed for want of prosecution after 6 years of filing but no step was taken to reinstate it for 3 years thereafter. I am afraid there is no material upon which this court can exercise its discretion in absence of concrete facts to explain delay.
I decline the entreaty to reinstate the suit and therefore dismiss the application dated 01.03.2023 with costs to the Defendant.
DATED and DELIVERED at NAIROBI this 28th day of MARCH 2023
D. S. MAJANJA
JUDGE