Abdulgater Shariff Saleh & another v Southern Credit Bank Limited & 2 others [2023] KEHC 27236 (KLR)

Abdulgater Shariff Saleh & another v Southern Credit Bank Limited & 2 others (Civil Case 245 & 165 of 2010 (Consolidated)) [2023] KEHC 27236 (KLR) (14 December 2023) (Ruling)

Neutral citation: [2023] KEHC 27236 (KLR)

Republic of Kenya

In the High Court at Mombasa

Civil Case 245 & 165 of 2010 (Consolidated)

DKN Magare, J

December 14, 2023

Between

Abdulgater Shariff Saleh

1st Plaintiff

Jamal Shariff T/A Jingo Tours & Safaris

2nd Plaintiff

and

Southern Credit Bank Limited

1st Defendant

Kelvin Karanja T/A Dalali Traders

2nd Defendant

Johnson Muli T/A Kithemu Auctioneers

3rd Defendant

Ruling

1. This is a Ruling on an Application dated 3rd August 2023 seeking to reinstate the suit following dismissal for want of prosecution on 18th April 2023.

2. The Applicant also seeks an Order for injunction against the Defendant from trespassing, selling, disposing in any other way interfering with all that property known as [particulars withheld].

3. The Application is brought under the provisions of Order 12 Rule 7 of the Civil Procedure Rules and is supported by the Affidavit of Derrick Odhiambo, Advocate, and materially based on the following grounds:(a)The suit was dismissed on 18th April 2023 for want of prosecution.(b)The Applicant was informed by his tenants in July 2023 that unknown people had entered on the premises without authority.(c)The Plaintiff has a case with high chances of success.(d)The Plaintiff had no knowledge of the notice of hearing following which the matter was dismissed.

4. The Application was opposed materially on the ground that the Applicant was not keen on prosecuting the matter and Applicant’s move was an afterthought brought long after the suit was dismissed in April 2023 and was not genuine.

Submissions 5. Parties filed submissions. I have perused the submissions. The Applicant reiterated materially the averments in the Application and Supporting Affidavit.

6. Counsel submitted that the Applicant was not aware of the date of the hearing. It was submitted that it was just to reinstate the suit under Order 12 Rule 7 of the Civil Procedure Rules.

7. On the strength of the case of Giella v Cassman Brown (1973) E.A 358, it was submitted that the Applicant had met the conditions for grant of interim injunction as demonstrated in the Application and Supporting Affidavit. That there was a threat of disposition of the suit premises after which the suit would be rendered academic.

8. On the part of the Respondents, it was submitted that the Application is unmeritorious because the Applicant was not keen on prosecuting the matter and the court rightly dismissed it.

9. It was further submitted that the history of the matter as evidenced by the court record would demonstrated inaction on the part of the Applicant.

10. On temporary injunction, it was submitted that there was no threat. That the Applicant’s move was an afterthought brought long after the suit was dismissed in April 2023 and was not genuine.

11. Counsel submitted that the Applicant had not satisfied the conditions in Giella v Cassman Brown (1973) E.A 358.

Analysis 12. I have also perused and considered the authorities filed by the parties to support their respective cases and it is not for their ack of value that I do not reproduce them here.

13. The issue in this case is whether the court should set aside the Order dismissing the suit for non-attendance by both parties on the day set for hearing the suit. A determination on this issue will determine whether I should consider the issue on interim interlocutory reliefs sought in the Application.

14. It is not in dispute that the suit was dismissed on the date of hearing for non-attendance by both parties.

15. I note that this suit was dismissed for non-attendance under Order 12 Rule 1 of the Civil Procedure Act which provides as follows:On the day fixed for hearing, after the suit has been called on for hearing outside the court, neither party attends, the court may dismiss the suit.

16. The Applicant has materially submitted that the this is a proper case for reinstatement pursuant to Order 12 Rule 7 of the Rules. There is also reference to Article 159 of the Constitution that the court is called upon to determine the disputes before it without regard to procedural technicalities.

17. The Impugned Order 12 Rule 7 of the Civil Procedure Rules provides as follows:“Where under this order judgment has been entered or a suit dismissed, the court, on application, may set aside or vary the judgment or order upon such terms as may be just."

18. The Applicant thus had the burden to prove reasons to justify setting aside of the dismissal order.

19. I have perused the Application. It is dated and filed on 3rd August 2023. The suit was dismissed on 18th April 2023 for nonattendance. The Application was thus filed about 4 months after the dismissal. The reason is that sometimes in July 2023, the tenants informed the Plaintiff that some people had visited the suit premises and there as reasonable belief that the Applicant was at the risk of losing the property through unlawful sale. The other reason is that the Applicant was unaware of the date if the hearing.

20. The suit has been in court for more than a decade. It appears that the Plaintiff would not have moved the court were it not for the alleged threat. Nevertheless, the delay of four 4 months has not been explained.

21. In our court system, delay is usually documented. Without documentation, it never happened. For example, a lost file where there is no record of follow up, is not lost. There is no evidence to prove that the Applicant was a passionate litigant who noticed of the dismissal in time and applied to set aside the dismissal order reasonably in time or immediately.

22. The setting of dismissal orders under Order 12 Rule 7 of the Civil Procedure Rules is typically a matter of discretion. The Applicant has to demonstrate that the trial court fettered its discretion and acted contrary to justice. This discretion has to be exercised judiciously, as was stated the case of Shah v Mbogo (1979) EA 116 quoted with approval in the case of John Mukuha Mburu v Charles Mwenga Mburu [2019] eKLR:“... this discretion is intended to be exercised to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake or error, but is not designated to assist a person who has deliberately sought, whether by evasion or otherwise to obstruct or delay the cause of justice.”

23. The wording of Order 12 Rule 7, requires sufficient cause as a consideration for setting aside a dismissal order for nonattendance.

24. In the case of Wachira Karani v Bildad Wachira [2016] eKLR, the Supreme Court stated that: -“Sufficient cause" is an expression which has been used in large number of statutes. The meaning of the word "sufficient" is "adequate" or "enough", in as much as may be necessary to answer the purpose intended. Therefore, the word "sufficient" embraces no more than that which provides a platitude which when the act done suffices to accomplish the purpose intended in the facts and circumstances existing in a case and duly examined from the view point of a reasonable standard of a curious man. In this context, "sufficient cause" means that party had not acted in a negligent manner or there was want of bona fide on its part in view of the facts and circumstances of a case or the party cannot be alleged to have been "not acting diligently" or "remaining inactive." However, the facts and circumstances of each case must afford sufficient ground to enable the court concerned to exercise discretion for the reason that whenever the court exercises discretion, it has to be exercised judiciously"The court in the above case added that while deciding whether there is a sufficient cause or not, the court must bear in mind the object of doing substantial justice to all the parties concerned and that the technicalities of the law should not prevent the court from doing substantial justice and doing away with the illegality perpetuated on the basis of the judgment impugned before it. The test to be applied is whether the defendant honestly and sincerely intended to remain present when the suit was called for hearing. Sufficient cause is thus the cause for which the defendant could not be blamed for his absence. Sufficient cause is a question of fact and the court has to exercise its discretion in the varied and special circumstances in the case at hand. There cannot be a straight-jacket formula of universal application. Thus, the defendant must demonstrate that he was prevented from attending court by a sufficient cause.

25. The Plaintiff had the primary obligation to prosecute the suit and the reason for the absence of counsel and the Plaintiff when the matter was called out for the purpose of the hearing has not sufficiently explained. The allegation that the Plaintiff had no notice of the progress of the matter since failure to attend by the parties on 21st November 2022 and subsequent failure to attend Court on 15th March and 18th April 2023. It is clear that the Applicant has no interest in the matter. The Application is indeed an afterthought filed owing to perceived threat to the title in the suit premises in July 2023.

26. I have also observed that it is the Applicant’s Advocate swearing the Supporting Affidavit. This is not a suitable case for the Advocate to depone. It has contentious matters which this court would have warranted the Plaintiff to personally swear the Affidavit. This is more so because the entire suit was dismissed and this was an attempt to reinstate it. It is thus in the nature of matters impermissible for the Advocates to swear Affidavits under Rule 9 of the Advocates Practice Rules.

27. In the case of Utalii Transport Co. Ltd and 3 Others v N.I.C. Bank and Another (2014) eKLR, the court held that:“It is the primary duty of the plaintiffs to take steps to progress their case since they are the ones who dragged the defendant to court.”

28. Therefore, parties have the obligation and duty to assist the court to adjudicate on the matters brought before it expeditiously as was held in Gideon Sitelu Konchella vs Daima Bank Limited (2013) eKLR where the court while citing the case of Mobil Kitale Service Limited vs Mobil Oil Kenya Limited, held that: -“It is in the interest of justice that litigation must be conducted expeditiously and efficiently so that injustice by delay would be a thing of the past. Justice would be better served if we dispose of matters expeditiously ... the overriding objection of this Act and Rules made hereunder is to facilitate the just, expeditious, proportionate and affordable resolution of the civil disputes governed by the Act."

29. For the reasons stated above, I find the Applicant not interested in prosecuting this suit. I decline to reinstate the suit. This being the determination, I find no reason to delve into the prayer for temporary injunctions.

Determination 30. In the circumstances, I make the following orders:(i)Application dated 3rd August 2023 is dismissed.(ii)Each part to bear their own costs.Orders accordingly.

DELIVERED, DATED AND SIGNED AT MOMBASA ON THIS 14TH DAY OF DECEMBER, 2023. JUDGMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.KIZITO MAGAREJUDGEIn the presence of: -Mr. Kongere for the DefendantMr. Odhiambo for the Applicant