Case ID:174809

Khunaif Trading Company Limited v Spire Bank Limited [2021] eKLR

Case Metadata

Case Number:

Civil Suit 52 of 2015

Parties:

Khunaif Trading Company Limited v Spire Bank Limited

Date Delivered:

24 Mar 2021

Case Class:

Civil

Court:

High Court at Mombasa

Case Action:

Ruling

Judge(s):

Dorah O. Chepkwony

Citation:

Khunaif Trading Company Limited v Spire Bank Limited [2021] eKLR

Advocates:

M/S Ikegu who appeared on behalf of Mr. Mawasi

for the Plaintiff

M/S Kemunya for the Respondent

Court Division:

Civil

County:

Mombasa

Advocates:

M/S Ikegu who appeared on behalf of Mr. Mawasi

for the Plaintiff

M/S Kemunya for the Respondent

History Advocates:

Both Parties Represented

Case Outcome:

Application dismissed

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MOMBASA

CIVIL SUIT NO.52 OF 2015

KHUNAIF TRADING COMPANY LIMITED................PLAINTIFF

VERSUS

SPIRE BANK LIMITED...........................................RESPONDENT

RULING

1. The matter was coming up for hearing of an application dated

17

th

April, 2019,

which was filed by the Defendant in the main suit dated

16

th

April,

2016

and the Plaintiff in the Counter-claim in the defence dated

27

th

March, 2018

.

2. The Defendant’s Counsel,

M/S Kemunya

was the only one in attendance. She told court that the Plaintiff had been duly served with the application and hearing notice. She also said that they had filed an affidavit of service to confirm this.

3. The Plaintiff and their Counsel were evidently absent and the Defendant’s Counsel proceeded to request the court to allow the application dated

17

th

April, 2019

, in which the Defendant seeks to have the suit dismissed for want of prosecution. She also went on to apply that the Defendant’s Counter-claim in the statement of defence dated

27

th

March, 2018

and filed on even date be allowed as presented.

4. I have read through the record and established that the Plaintiff filed this suit on

17

th

April, 2015

. The Defendant then filed the statement of defence and Counter-claim on

27

th

March, 2018

.

5. The application dated

17

th

April, 2019

and filed on

2

nd

May, 2019

seeks for prayers that:

a) The Plaintiff’s suit be dismissed with costs to the Defendants;

b) THAT the Defendant’s Counter-claim in the statement of defence and Counter-claim filed on 27

th

August 2018 be allowed as prayed.

c) THAT the costs of the application be awarded to the Defendant.

6. There was a notice of withdrawal of the said application dated

19

th

July, 2019

but the same was withdrawn and expunged from the record on

29

th

July, 2019

.

7. Equally important, it is worth noting that vide an application dated

4

th

April, 2019

the Defendant requested and obtained a Judgment in default of appearance against the Plaintiff and a decree thereof issued on

2

nd

July, 2019

. However, the said Judgment was set aside

ex-debito justicae

on

29

th

July, 2019

.

8. The court record also shows that the Plaintiff has failed to attend court on many occasions and from

9

th

March, 2018

to date, the Plaintiff’s Counsel only attended court on

16

th

December, 2019

, when the matter came up for hearing of the application dated

17

th

April, 2010

.

9.

M/S Ikegu

Counsel who appeared on behalf of

Mr. Mawasi,

Counsel for the Plaintiff was granted an adjournment on the account of being indisposed.

M/S Ikegu

also indicated that

Mr. Mawasi

was in the process of filing an application to cease from acting for the reason that he had not received further instructions from the Plaintiff. However, to date, no such application has been filed.

10. With regard to the application dated

17

th

April, 2019

, the applicable and relevant provision of law under which a suit can be dismissed for want of prosecution is

Order 17 Rule 2(1)

of the

Civil Procedure Rules

, which states:-

“In any suit in which no application had been made or steps 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”

.

11. Further,

Order 17 Rule 2(3)

provides that any party to the suit may apply for its dismissal as provided for in sub-rule 1. The guiding criteria to be considered or with regard to whether a case should be dismissed for want of prosecution is

if the delay is prolonged and inexecusable, or if it is, whether justice can still be done despite such delay. The Defendant

must also meet the one year threshold of inactivity as stipulated under

Order 17

Rule 2

of the

Civil Procedure Rules

.

12. With regard to the one year threshold, the record shows that the suit was commenced by a

Plaint

dated

16

th

April, 2015

and filed on

17

th

April, 2015

. Since then Plaintiff has never set down the same for hearing. The last time this suit was prosecuted was with regard to hearing of the

Notice of Motion

dated

3

rd

May, 2017

filed by the Defendant and

Ruling

thereof delivered on

9

th

March, 2018

. The Plaintiff has never filed a reply to the Counter-claim by the Defendant or moved the court for hearing of this suit. The matter came up before court on

15

th

May, 2019

at the request by the Defendant for Judgment in default to be entered against the Plaintiff in the Counter-claim.

13. Having taken into account the chronology of events since the filing of this suit, the magnitude of the delay has been demonstrated from the proceedings. It is clear that the Plaintiff is guilty of laches and cannot deny that it has been less than diligent in having the suit prosecuted. Its conduct has been shown to be that of a lethargic litigant not interested in prosecuting its case.

14. I am therefore satisfied that the application dated

17

th

April, 2019

has met the threshold for dismissal of the suit herein for want of prosecution and is hereby allowed in its entirety.

DELIVERED, DATED and SIGNED VIRTUALLY at MOMBASA this 24

th

day of MARCH 2021.

D. O. CHEPKWONY

JUDGE

24/3/2021