Background
1. This ruling determines the Plaintiffs’ application dated 3rd May 2023, seeking the reinstatement of the suit, which was dismissed on 18th April 2023 for want of prosecution. The Plaintiffs, Kiri-Ira Holdings Limited (1st Plaintiff) and Namsi Limited (2nd Plaintiff), the Applicants herein, contend that the dismissal was occasioned by circumstances beyond their control and now urge this Court to exercise its discretion in their favour and have the suit reinstated.
2. The genesis of this matter dates back to March 2019 when the Plaintiffs filed this suit against Kenya Commercial Bank Limited (1st Defendant) and Leakey’s Auctioneers (2nd Defendant). The dispute revolves around a financial facility extended by the 1st Defendant to the 2nd Plaintiff, Namsi Limited.
3. Upon the 2nd Plaintiff’s default in repaying the facility, the 1st Defendant moved to exercise its statutory power of sale over the secured property, prompting the Plaintiffs to seek injunctive relief from this Court vide an application dated 25th March 2019 which was filed contemporaneously with the Plaint.
4. On 4th March 2020, this Court dismissed the injunction application, thereby allowing the 1st Defendant to proceed with the realization of its security. The Plaintiffs were however granted a 30-day stay of execution to enable them to lodge an appeal. Notably, no appeal was filed, and the Plaintiffs took no further steps to prosecute the main suit.
5. The suit lay dormant for over two years, prompting this Court, on its own motion, to issue a Notice to Show Cause (NTSC) on 18th March 2023. The Plaintiffs were required to explain why the suit should not be dismissed for want of prosecution.
6. On 18th April 2023, the court, upon being satisfied that there was no sufficient cause shown by the Plaintiffs, dismissed the suit for want of prosecution.
7. Aggrieved by the dismissal, the Plaintiffs filed the present application seeking to have the suit reinstated. They attribute the failure to respond to the Notice to Show Cause to technical challenges with the e-filing system and argue that they remain interested in prosecuting the matter to its conclusion. They further assert that they would suffer irreparable harm if denied the opportunity to prosecute their claim.
8. In response, the 1st Defendant, through a Replying Affidavit sworn by Lilian Sogo on 26th April 2024, opposed the application. The Defendant contends that the Plaintiffs have demonstrated a clear lack of interest in pursuing the matter, having remained inactive for over two years. The Defendant further argues that the Plaintiffs' failure to appeal the ruling of 4th March 2020 and their continuous inaction amounts to abuse of the Court process. Reinstating the suit, the Defendant submits, would prejudice its rights and undermine the principle of finality in litigation.
9. The application was canvassed by way of written submissions. The Plaintiffs' submissions are dated 6th October 2023, while the 1st Defendants' submissions are dated 26th April 2024. Both parties reiterated their respective positions, with the Plaintiffs urging the Court to exercise its discretion to reinstate the suit, and the Defendants opposing reinstatement on grounds of inordinate delay on the part of the Plaintiffs and prejudice the Defendants are likely to suffer in the event the suit is to be reinstated.
Plaintiffs’ Submissions
10. The Plaintiffs submitted that the dismissal of the suit by the Court on 18th April 2023 was not due to negligence or lack of interest on their part, but was occasioned by technical challenges encountered by their newly appointed advocates while attempting to file crucial documents in response to the Court’s Notice to Show Cause. They argued that the failure to file the Notice of Appointment and Replying Affidavit was beyond their control due to delays in being mapped onto the Court's e-filing system.
11. The Plaintiffs contended that they had demonstrated their intention to prosecute the matter by appearing in Court on 18th March 2023, where their advocates explained the challenges encountered with the e-filing system. They submitted that their failure to file the necessary documents was an inadvertent error, not a deliberate act of indolence.
12. Pleading with this court to reinstate the suit, the Plaintiffs relied on Order 12 Rule 7 of the Civil Procedure Rules, which grants the Court discretion to set aside dismissal orders upon sufficient cause being shown. They further cited the decision in Shah v Mbogo & Another [1967] EA 116, which held that the Court’s discretion should be exercised to prevent injustice resulting from inadvertent errors or mistakes.
13. The Plaintiffs also invoked Article 159(2)(d) of the Constitution of Kenya, 2010 together with Sections 1A, 1B, and 3A of the Civil Procedure Act which directs Courts to administer justice without undue regard to procedural technicalities. They argued that procedural lapses should not be used to deny them substantive justice and that their case should be heard on its merits.
14. The Plaintiffs submitted that reinstating the suit would not prejudice the Defendants in any way. That any inconvenience the Defendants might suffer can be adequately compensated through an award of costs. In support, the Plaintiffs relied on Philip Chemowolo & Another v Augustine Kubende [1982-88] 1 KAR 103, where the Court held that there is no error, mistake, or default that cannot be put right by payment of costs.
15. The Plaintiffs further argued that they have a legitimate claim that deserves to be heard. They submitted that the Defendants' actions in moving to exercise their statutory power of sale without proper notice and in breach of contractual obligations must be examined by the Court. Denying them this opportunity would amount to injustice.
16. The Plaintiffs also relied on Ivita v Kyumbu [1984] KLR 441, where the Court stated that the test for reinstating a suit is whether the delay was prolonged and inexcusable and whether justice can still be served. They contended that the delay in this case was neither prolonged nor inexcusable and that justice demands the matter be heard on its merits.
17. On the argument that the Plaintiffs were negligent, they submitted that it was their former advocates who failed to diligently prosecute the matter. They urged the Court not to punish them for the mistakes of their counsel, citing CMC Holdings v Nzioki [2024] 1 KLR, which held that mistakes by counsel should not be used to lock litigants out of the seat of justice.
18. The Plaintiffs concluded by urging the Court to exercise its discretion in their favor and reinstate the suit. They emphasized that it is in the interest of justice to allow the suit to proceed to a full hearing on its merits.
Defendants’ Submissions
19. The 1st Defendant, Kenya Commercial Bank Limited, opposed the application for reinstatement of the suit, arguing that the Plaintiffs have demonstrated a clear lack of interest in prosecuting the matter. The Defendant submitted that the Plaintiffs remained inactive for over two years after the dismissal of their application for injunctive relief on 4th March 2020 and only reacted after the Court issued a Notice to Show Cause (NTSC) on 18th March 2023.
20. The Defendant contended that the Plaintiffs have not provided any sufficient or justifiable reason for the inordinate delay in prosecuting the matter. The Defendant submitted that the Plaintiffs cannot simply blame their former advocates for the inactivity. It is the Plaintiffs’ primary responsibility to actively follow up on the progress of their case, regardless of legal representation.
21. The Defendant relied on the decision in Habo Agencies Limited v Wilfred Odhiambo Musingo [2015] eKLR, where the Court of Appeal held:-
"It is not enough for a party in litigation to simply blame the advocates on record for all manner of transgressions in the conduct of the litigation. Courts have always emphasized that parties have a responsibility to show interest in and to follow up their cases even when they are represented by counsel."
22. The Defendant further argued that reinstating the suit would greatly prejudice the 1st Defendant. Due to the prolonged delay, that witnesses may have memory lapses and critical documents could be lost or difficult to retrieve. This, the Defendant contends, significantly compromises its ability to effectively defend the suit.
23. In support of this position, the Defendant relied on the case of Ivita v Kyumbu [1984] KLR 441, where the Court stated:-
"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 the Defendant; so both parties to the suit must be considered….."
24. The Defendant submitted that the delay in this case was both prolonged and inexcusable and that reinstating the suit would be contrary to the interests of justice.
25. The Defendant emphasized the importance of the principle of finality in litigation and submitted that litigation must come to an end. They cited the decision in Samuel Mburu Kago v Julius Maina Muchina & 2 Others [2019] eKLR, where the Court held:-
"There must be an end to litigation, and it is intolerable that litigants could be allowed to approach courts to reconsider final orders and have such final orders reopened."
26. The Defendant also argued that the Plaintiffs are using the application for reinstatement as a strategy to delay the inevitable realization of the 1st Defendant's statutory power of sale. The Plaintiffs had previously been granted a 30-day stay of execution to appeal the ruling of 4th March 2020 but took no steps to appeal, demonstrating a lack of genuine interest in prosecuting the matter.
27. The Defendant submitted that the Plaintiffs’ prolonged inactivity has subjected the Defendant to prejudice, including the continued accumulation of interest on the unpaid loan facility and delays in exercising its legal rights over the charged property. The Defendant argued that such prejudice cannot be cured by an award of costs.
28. The Defendant further relied on the case of Jimmy Mutuku Kiamba v Nation Media Group Limited & 2 Others [2020] eKLR, where the Court reiterated that inordinate delay without justification is inexcusable. The Defendant submitted that the Plaintiffs have failed to explain the extended delay in prosecuting the suit and therefore the application should be dismissed.
29. The Defendant concluded by urging the Court to uphold the dismissal order issued on 18th April 2023. They argued that the Plaintiffs have failed to demonstrate sufficient cause for reinstatement and that the interests of justice and fairness favour the dismissal of the application.
Analysis and Determination
30. The primary issue for determination is whether the Plaintiffs have provided sufficient cause to warrant the setting aside of this Court’s dismissal order dated 18th April 2023.
31. The Plaintiffs' application for reinstatement is anchored on Order 12 Rule 7 of the Civil Procedure Rules, 2010, which empowers the Court to set aside an order of dismissal where sufficient cause is shown. The Rule provides: -
"Where under this Order judgment has been entered or the suit has been dismissed, the Court, on application, may set aside or vary the judgment or order upon such terms as may be just."
32. The key consideration under this Rule is whether the Plaintiffs have demonstrated sufficient cause for the delay in prosecuting the suit. The guiding principle on what amounts to “sufficient cause” was elaborated in Shah v Mbogo & Another [1967] EA 116, where Harris J held:
"The discretion of the Court to set aside an ex parte judgment is intended to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake or error but is not designed to assist a person who has deliberately sought to obstruct or delay the course of justice."
33. The power of the Court to dismiss a suit for want of prosecution is provided under Order 17 Rule 2(1) of the Civil Procedure Rules, 2010, which states:
"In any suit in which no application has been made or step taken by either party for one year, the court may give notice in writing to the parties to show cause why the suit should not be dismissed, and if cause is not shown to its satisfaction, may dismiss the suit."
34. The rationale behind this provision is to ensure that litigation is prosecuted with diligence and to prevent the misuse of the Court's processes. Justice must not only be done but must be seen to be done without undue delay. This principle was well stated in Ivita v Kyumbu [1984] KLR 441, where the Court outlined the test for dismissing a suit for want of prosecution: -
"The test is whether the delay is prolonged and inexcusable, and if it is, whether justice can still be done despite the delay. Thus, even if the delay is prolonged, if the court is satisfied with the plaintiff’s excuse for the delay, and that justice can still be done to the parties, the action will not be dismissed but will be ordered that it be set down for hearing at the earliest possible time."
35. In the present case, the Plaintiffs’ suit was dismissed on 18th April 2023 after they failed to respond to the Notice to Show Cause (NTSC) issued by the Court on 18th March 2023. The Plaintiffs attribute their failure to respond to the technical challenges encountered by their newly appointed advocates in navigating the Court's e-filing system, which hindered the filing of a Notice of Appointment and a Replying Affidavit.
36. While the Court acknowledges that technical issues in e-filing may arise, it is well established that litigants and their advocates must be proactive and diligent in the prosecution of their cases. The Court finds the explanation offered by the Plaintiffs to be inadequate and unconvincing for several reasons.
37. Firstly, it is the duty of litigants to follow up on their cases, regardless of representation. This duty was underscored in Habo Agencies Limited v Wilfred Odhiambo Musingo [2015] eKLR, where the Court of Appeal held:
"It is not enough for a party in litigation to simply blame the advocates on record for all manner of transgressions in the conduct of the litigation. Courts have always emphasized that parties have a responsibility to show interest in and to follow up their cases even when they are represented by counsel."
38. Secondly, the plaintiffs have not provided any credible evidence demonstrating that the Judiciary’s e-filing system was malfunctioning or inaccessible on the material dates. The Court notes that no official communication from the Judiciary confirming any system downtime has been furnished by the Applicant, neither have they exhibited any correspondence from them or their Advocates to the Court regarding the difficulties they were facing in being mapped to the system.
39. A reasonable and diligent litigant, upon encountering challenges with the e-filing system, would have, at the very least, written to the Deputy Registrar of the court concerned to have any challenges addressed. As indicated above, no such correspondence has been exhibited by the Applicants in the instant application.
40. This position was affirmed in Utalii Transport Company Limited & 3 Others v NIC Bank Limited & Another [2014] eKLR, where the Court observed:
"Litigation is a serious matter that must be followed up with diligence. It is not enough to blame counsel for inaction. A litigant has a duty to constantly check the progress of their case and ensure that it is prosecuted without delay."
41. Thirdly, the Plaintiffs were aware of the Notice to Show Cause hearing scheduled for 18th March 2023 and appeared before the Court but took no substantial steps thereafter to avert the risk of dismissal. The lack of further action demonstrates complacency and a lack of urgency in safeguarding their interests.
42. Moreover, courts have consistently held that delays resulting from advocate negligence do not automatically constitute sufficient cause for reinstatement. In Rajesh Rughani v Fifty Investments Limited & Another [2005] eKLR, the Court emphasized:-
"It is not enough for a litigant to blame their advocate for failing to act; they must show that they followed up on their case and took reasonable steps to prosecute it."
43. In the circumstances, I am not entirely convinced by the arguments put forward by the Plaintiffs to explain their inaction in prosecuting the suit since it was filed in 2018.
44. However, to give the Plaintiffs a second chance to prosecute their case, I will exercise my discretion and reinstate the suit on condition that the Plaintiffs pay the 1st Defendant throwaway costs in the sum of Kshs. 30,000/- within 21 days from the date of this Ruling, in default of which the order of reinstatement shall automatically lapse.
45. It is so ordered.
SIGNED DATED and DELIVERED IN VIRTUAL COURT
THIS 27TH DAY OF FEBRUARY 2025
ADO MOSES
JUDGE
In the presence of:
Moses – Court Assistant