Case ID:176252

Julius Kipkeny Kolil & another v Kenya Commercial Bank Limited & 2 others [2021] eKLR

Case Metadata

Case Number:

Civil Case 407 of 2012

Parties:

Julius Kipkeny Kolil & another v Kenya Commercial Bank Limited, Nancy Waithira Kiruri & Muganda Wakulwa t/a Keysian Auctioneers

Date Delivered:

21 May 2021

Case Class:

Civil

Court:

High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Case Action:

Ruling

Judge(s):

Maureen Akinyi Odero

Citation:

Julius Kipkeny Kolil & another v Kenya Commercial Bank Limited & 2 others [2021] eKLR

Court Division:

Civil

County:

Nairobi

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 NAIROBI

COMMERCIAL & TAX DIVISION

CIVIL CASE NO. 407 OF 2012

JULIUS KIPKENY KOLIL.....................................................................1

ST

PLAINTIFF

RUTH JEMUTAI KAMAR......................................................................2

ND

PLAINTIFF

VERSUS

KENYA COMMERCIAL BANK LIMITED.......................................1

ST

DEFENDANT

NANCY WAITHIRA KIRURI..............................................................2

ND

DEFENDANT

MUGANDA WAKULWA T/A KEYSIAN AUCTIONEERS.............3

RD

DEFENDANT

RULING

(1) Before this Court are three (3) applications for determination as follows-

(i) Notice of Motion dated 25

th

November 2019 by which the 1

st

Defendant KENYA COMMERCIAL BANK sought the following orders:-

(1) THAT this suit be dismissed for non-compliance with the order issued on 4

th

July 2019.

(2) THAT the costs of this application be borne by the Plaintiffs.

2) The application which was premised upon

Order 17 Rule 2(4), Order 51 Rule 1

of the

Civil Procedure Act Chapter 21, Laws of Kenya

the inherent jurisdiction of this Honourable Court and all other enabling provisions of the law, was supported by the Affidavit of even date sworn by

TOM A. OGOLA

the Senior Legal Counsel of the Bank.

3)

(ii) Notice of Motion dated 15

th

January 2020 filed by the 2

nd

Defendant NANCY WAITHIRA KIRURI MUGANDA T/A KEYSIAN AUCTIONEERS seeking for orders:-

(1) THAT the Plaintiff’s claim be dismissed for want of prosecution.

(2) THAT the 2

nd

Defendant’s counterclaim be granted as prayed.

(3) THAT the costs of the application be in the cause.

4) This second application was premised upon

Article 159(2)(b)

of the

Constitution of Kenya, Section 1A, 1B

and

3A

of the

Civil Procedure Act, Order 7 Rule 13, Order 17, Rule 2(4)

and

Order 51 Rule 1

of the

Civil Procedure Rules

and all other enabling provisions of the Law, and was supported by the Affidavit of even date sworn by the 2

nd

Defendant.

5) (iii) Notice of Motion dated

9

th

March 2020

in which

JULIUS KIPKENY KOLIL

(the 1

st

Plaintiff/Applicant) and

RUTH JEMUTAI KAMAR

(the 2

nd

Plaintiff/Applicant) sought for orders

THAT

:-

(i) This Honourable Court do vary and/or set aside its orders issued on 4

th

July 2019.

(ii) The Honourable Court be pleased to extend time within which to set down suit for hearing.

(iii) The Plaintiffs herein be granted leave to amend the Plaint herein in terms of the draft amended Plaint to enjoin the Chief Registrar as the 4

th

Defendant.

(iv) This Honourable Court do cancel the entry transferring the suit property being L.R. No. 9042/685 Maisonette No. B4, Simba Villas – Embakasi to the 2

nd

Defendant; and

(v) The costs of the application be provided for.”

6) This third application was premised upon

Sections 1A, 1B, 3A

and

63(e)

of the

Civil Procedure Act

,

Order 45 Rules 1

,

Order 8 Rule 3

and

5

of the

Civil Procedure Rules

and all enabling provisions of the law and was supported by the Affidavit of even date sworn by

JOEL KIMUTAI BOSEK

an Advocate of the High Court of Kenya.

7) All the three applications were opposed. The Court directed that the three applications be heard and determined together and that they be canvassed by way of written submissions. The Plaintiff / Applicants filed their written submissions dated

25

th

September 2020

, the 1

st

Defendant filed its written submissions dated

28

th

September 2020

whilst the 2

nd

Defendant filed their written submissions dated

10

th

September 2020

.

BACKGROUND

8) Vide the Plaint filed in Court on

25

th

June 2012

the Plaintiffs sought the following orders as against the 1

st

and 2

nd

Defendants-

a) Make a declaration that the purported sale of L.R. No. 9042/685 Maisonette No. B4 between the First Defendant and the Second Defendant is unlawful;

b) Order exemplary damages against the First Defendant for breach of fiduciary duty;

c) Issue a permanent injunction restraining the Defendants from interfering with the Plaintiff’s suit property;

d) Grant any other relief that this Honourable Court may deem fit to grant; and

e) (Grants) Costs of this suit.

9) Contemporaneously with the suit the Plaintiffs filed an application seeking injunctive relief pending the hearing and final determination of the suit. The said application was heard and a Ruling was issued on

28

th

March 2013

by

Hon. Justice J. B. Havelock

(as he then was).

10) Thereafter the Plaintiffs failed and/or neglected to set down the suit for hearing and the Court issued Notices to Show Cause why the suit should not be dismissed for lack of prosecution under

Order 17 Rule 2

,

Civil Procedure Rules

. The suit was eventually dismissed on

26

th

September 2018

for want of prosecution.

11) The Plaintiffs then filed the Notice of Motion dated

12

th

November 2018

seeking to have the suit reinstated. In allowing the application for reinstatement of the suit this Court in its Ruling of

4

th

July 2019

stated as follows:-

“Accordingly I do allow this present application and

direct that the suit be set down for hearing within sixty (60) days of the date of this Ruling failing which it will stand dismissed

. In order to expedite the matter, parties will appear before the Hon. Deputy Registrar for Case Management within thirty (30) days of this Ruling. It is so ordered. Costs to the 1

st

Defendant.” [emphasis supplied]

12) Counsel for the Plaintiffs did not attend Court on the Ruling date.

The Court then directed that the parties appear before the Hon. Deputy Registrar for Case Management on

25

th

July 2019

. It was averred that Counsel for the 1

st

Defendant duly served the Plaintiffs Advocate with a mention notice to appear before the

Hon. Deputy Registrar

. This is evidenced by the Affidavit of Service dated

24

th

July 2019

(Annexture

TAO ’2’

) to the Supporting Affidavit dated

25

th

November 2019

. However on the scheduled date for Case Management being

25

th

July 2019

only the 1

st

and 2

nd

Defendants were represented. The Plaintiffs failed to appear for Case Management.

13) The Hon. Deputy Registrar after noting that the pleadings were not complete directed all the parties to comply within 14 days. Parties again appeared before the Hon. Deputy Registrar on

25

th

September 2015

when the 1

st

and 2

nd

Defendants confirmed that they had filled their respective pleadings as directed. The Plaintiffs however sought for and were granted an additional fourteen (14) days to put in additional documents and witness statements. The matter was then scheduled for mention on

18

th

October 2019

.

14) On

18

th

October 2019

when the matter came up before the Hon. Deputy Registrar the Plaintiffs again sought for additional time to comply with Case Management. The Hon. Deputy Registrar then referred the file back to the trial Court on

21

st

November 2019

for directions in light of the directions which had been made on

4

th

July 2019

. Before that date the Plaintiff filed its documents. On

21

st

November 2019

the trial Judge directed the 1

st

Respondent to put in a formal application to have the suit dismissed for non-compliance with the Courts orders on

4

th

July, 2019

. Hence the present applications.

ANALYSIS AND DETERMINATION

15) I have carefully considered the written submissions filed by the parties in this matter. The following are the issues that arise for determination:-

(i) Whether the Plaintiffs suit stands dismissed for non-compliance with the Courts orders of 4

th

July 2019.

(ii) Whether the Plaintiffs are entitled to the orders sought in the Notice of Motion dated 9

th

March 2020.

16) It is common ground that this suit was dismissed on

26

th

September 2018

for want of prosecution under

Order 17 Rule 2

. Thereafter upon application by the Plaintiffs vide the Ruling of

4

th

July 2019

the High Court reinstated the suit and in doing so made the following orders:-

(i) That the suit be set down for hearing within sixty days from the date of the Ruling

failing which it will stand dismissed

.

(ii) In order to expedite the matter, parties to appear before Deputy Registrar for Case Management within 30 days of this Ruling.

(iii) Costs shall be to the Defendant

.

[emphasis supplied]

17) The Applicants submit that despite clear direction that the suit be set down for hearing within

sixty (60) days

, the Plaintiffs failed to comply and failed to attend before the Hon. Deputy Registrar on

25

th

July 2019

for Case Management. Counsel for the 1

st

Defendant contended that in the circumstances the Plaintiffs suit automatically abated

sixty (60) days

after the order ie on

5

th

September 2019

and as such there existed no suit to be reinstated. That the 1

st

Defendants application of

25

th

November 2019

was bought merely to confirm the status of the suit as

‘dismissed.’

18) Similarly the 2

nd

Defendant submitted that the delay by the Plaintiff in setting down the suit for hearing within

sixty (60) days

as directed by Court had been inordinate, unexcusable and occasioned prejudice to the two Defendants. That no valid reason had been advanced why the suit should be reinstated and thus there existed no reason or the Court to exercise its discretion in favour of the Plaintiffs.

19) On their part the Plaintiffs pleaded that the delay in complying with the Courts directions of

4

th

July 2019

was due to factors beyond their control. It was submitted for the Plaintiff that the Defendants applications had been overtaken by events and ought to be dismissed.

20) It is trite that Courts do not issue orders in vain. Court orders are binding on the parties and must be obeyed. In

TEACHERS SERVICE COMMISSION –VS- KENYA NATIONAL UNION OF TEACHERS & 2 OTHERS [2013]eKLR

it was stated that:-

“

A Court order is not a mere suggestion or an opinion or a point of view. It is a directive that is issued after much thought and with circumspection. It must therefore be complied with and it is in the interest of every person that this remains the case

. To see it any other way is to open the door to chaos and anarchy and this Court will not be the one to open that door. If one is dissatisfied with an order of the Court, the avenues for challenging it are also set out in the law. Defiance is not an option.” [emphasis added]

21) The Plaintiffs argument that certain developments necessitated the amendment of the Plaint is not persuasive. They submit that they required more time to establish the ownership status of the suit property. The Plaintiffs had

sixty (60) days

to clarify any issues and to effect any amendments. The claim that the delay in setting down the suit for hearing was necessitated by the need to establish the true owner of the suit property is merely an excuse. The Plaintiff was already aware that the suit property had been transferred and registered in favour of the 2

nd

Defendant. This is evident from the Plaintiffs own Further Affidavit dated

29

th

August 2012

(Annexture

JK-3

to the Replying affidavit dated

19

th

June 2020

). In this Affidavit the Plaintiff challenges the registration of the suit property to the 2

nd

Defendant claiming that such registration was null and void. Thus by

August 2012

the Plaintiff was already aware of the ownership status of the suit property. Therefore the allegation that the delay was caused by the need to determine who owned the suit property cannot be true. In any event the Plaintiffs were at liberty to seek an extension of the

sixty (60) days

time limit granted by the Court, if they felt that the time provided by the Court was not sufficient.

22) From the Court record it is quite evident that the Plaintiffs were very lax in the manner in which they approached the prosecution of this suit. The failed to attend for Case Management before the Hon. Deputy Registrar and also failed to comply with the time lines given by the Registrar for service of documents. It is quite clear that even after the suit had been dismissed and reinstated the Plaintiffs still took the matter casually. This is a very old suit. The Plaint was filed way back in the year

2012

. It is prejudicial to the Defendants to keep this suit hanging like a sword of Damocles over their heads for over nine (9) years. Litigation it is said must come to an end. In the case of

MWANGI S. KIMENYI –VS- ATTORNEY GENERAL AND ANOTHER, CIVIL SUIT MISC. No. 720 OF 2009

, the Court stated as follows:-

(1) When the delay is prolonged and inexcusable, such that it would cause grave injustice to the one side or the other or to both, the Court may in its discretion dismiss the action straight away. However, it should be understood that prolonged delay alone should not prevent the Court from doing justice to all the parties – the Plaintiff, the Defendant and any other third or interested party in the suit; lest justice should be placed too far away from the parties.

(2) Invariably, what should matter to the Court is to serve substantive justice through judicious exercise of discretion which is to be guided by the following issues; 1) whether the delay has been intentional and contumelious; 2) whether the delay or the conduct of the Plaintiff amounts to an abuse of the Court; 3) whether the delay is inordinate and inexcusable; 4) whether the delay is one that gives rise to a substantial risk to fair trial in that it is not possible to have a fair trial of issues in action or causes or likely to cause serious prejudice to the Defendant; and 5) what prejudice will the dismissal cause to the Plaintiff. By this test, the Court is not assisting the indolent, but rather it is serving the interest of justice, substantive justice on behalf of all the parties.

23) Likewise

IN NILESH PREMCHAND MULJI SHAH & ANOTHER T/A KETAN EMPORIUM v M.D. POPAT AND OTHERS & ANOTHER [2016]eKLR

,

R.E. Aburili J.

held thus:-

“The delay in setting down the matter for hearing no doubt prejudices the 2

nd

defendant as justice delayed is justice denied. The plaintiff has not given any excuse for her inaction. The court is aware that the act of dismissing a suit is a draconian measure which should be exercised cautiously as it drives the party from the judgment seat of justice. Nonetheless the court is bound to do justice to both parties without undue delay, which delay occasions injustice to either party to the dispute and in this case, delay defeats equity.

… The court shall therefore not hesitate to have the suit dismissed because the continued delay no doubt infringes on the defendants’ rights and legitimate expectations that disputes against them should be resolved expeditiously. Albeit the defendants have a counter claim, they are not bound to prosecute the plaintiff’s suit.”

24) The orders made by the Court on

4

th

July 2019

were clear and unequivocal – that the suit be set down for hearing within

sixty (60) days

“failing which it will stand dismissed.”

The duty / responsibility to prosecute a suit lies upon the Plaintiff. In

CANUK HOLDINGS LIMITED –VS- PRAMOD PATEL T/A PRAMOD PATEL ADVOCATE [2020]eKLR

, where

Kamau J.

noted that:-

“It is the primary duty of a Plaintiff to take steps to progress his matter since they are the ones who drag the Defendant to Court, a position that was held in the case of UTALII TRANSPORT CO. LTD & 3 OTHERS –VS- NIC BANK & ANOTHER [2014]eKLR…

Appreciably, a case belongs to a Plaintiff. It is his responsibility to progress his matter to ensure that the same is concluded expeditiously as is contemplated in Section 1A, 1B and 3A of the Civil Procedure Rules and Article 159(2) (b) of the Constitution of Kenya.”

25) The Plaintiffs here adopted a laizzez-fare approach to the prosecution of their suit. They failed to make use of that 2

nd

lifeline thrown to them by the Court. The Plaintiffs have failed to give any valid reason and/or justification for their failure to have the suit listed with in

sixty (60) days

as directed by the Court. Accordingly, I find that the suit stood dismissed on the

60

th

day

after

4

th

July 2019

the order was made ie on

5

th

September 2019

.

26) Having found that the suit stood dismissed

sixty (60) days

after the Ruling of

4

th

July 2019

. I find that the Plaintiffs application has no legs to stand on and must be dismissed. Accordingly I do dismiss the Notice of Motion dated

9

th

March 2020

and award costs to the 1

st

and 2

nd

Defendants.

27) The application dated

25

th

November 2019

filed by the 1

st

Defendant is allowed as prayed with costs to the 1

st

Defendant. Further I do allow prayer (i) of the 2

nd

Defendants Notice of Motion dated

15

th

January 2020

. The 2

nd

Defendant to file an application to obtain physical possession of the suit property. Costs are awarded to the 2

nd

Defendant.

DATED IN NAIROBI THIS 21ST DAY OF MAY, 2021.

........................................

MAUREEN A. ODERO

JUDGE