Felista Atieno Abuor v Kenya Commercial Bank Limited & Joshua Omuganda t/a Eshikhoni Agency [2018] KEHC 3974 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISUMU

COMMERCIAL SUIT NO. 67 OF 2018

FELISTA ATIENO ABUOR.........................................................PLAINTIFF

-VERSUS -

KENYA COMMERCIAL BANK LIMITED.....................1ST DEFENDANT

JOSHUA OMUGANDA T/A ESHIKHONI AGENCY....2ND DEFENDANT

R U L I N G

1. The application dated 16th May 2016 seeks the dismissal of the suit for want of prosecution.

2. The suit was filed on 18th October 2013.

3. According to the defendants, there has been a total lack of interest by the plaintiff in her case since 2013.

4. When the matter came up before Kibunja J.  on 19th March 2018, both parties informed the learned Judge that they did not intend to make any submissions on the application.

5. The defendants said that they would be relying upon the Grounds on the face of the Application, together with the Supporting Affidavit.

6. In turn, the plaintiff said that she would be relying upon the Grounds of Opposition.

7. In the absence of any submissions, the plaintiff deprived the Court of an opportunity to appreciate why she was of the view that;

(i) The application is misconceived and bad in law.

(ii) The application lacks in merit and does not lay. (sic!)

(iii)  The application is fatally and incurably defective.

(iv) The application is an abuse of the Court process.

(v) That the affidavit in support of the application is defective.

(vi) The application has not met the threshold required in law to merit the Orders sought.”

8. I have gone through the Court file, to enable me get an informed appreciation of the circumstances prevailing in the case.

9. On 23rd October 2013, Kaniaru J. handled the plaintiff’s application for an interlocutory injunction.  On that date, the application was heard exparte.

10. The learned Judge was told that although the sale of the suit property had been scheduled for 18th October 2013, the said sale did not take place.

11. The plaintiff also told the Court that she would be demonstrating that she had already paid all the money which she owed to the Kenya Commercial Bank Limited, (the 1st Defendant).

12. Having given due consideration to the submissions made by the plaintiff, the Court granted an Order of a Temporary Injunction to restrain the defendants from selling, alienating, disposing off or in any other way interfering with the plaintiff’s quiet occupation of the suit property, L.R. NO. KISUMU/MANYATTA ‘A’ 129.

13. The application was then fixed for inter partes hearing on 6th November 2013.  However, on that date, the plaintiff did not attend court.

14. The interim order was extended to 28th November 2013, in order to allow the defendants sufficient time to respond to the application.

15. On 28th November 2013, the defendants sought a further extension of time, to respond to the application.

16. When the matter was next in court on 30th January 2014, the parties informed the Court that the plaintiff and the bank were holding negotiations.

17. Meanwhile, on 16th January 2014, the 2nd plaintiff had filed in Court, a Notice of Discontinuance of the suit against the defendants.  The 2nd plaintiff is SWISS TRAVELS LIMITED.

18. On 30th January 2014, the Court marked as abandoned, the case which the 2nd plaintiff had filed.  The learned Judge also ordered the 2nd plaintiff to pay to the defendants, the costs of the suit.

19. Between 30th January 2014 and 19th March 2018, the case was listed for Mention on several occasions.  During that period, the interim orders do not appear to have been extended.

20. Meanwhile, the record of proceedings does not show that on 30th January 2014 the Court ordered the plaintiffs to pay the costs of the suit which had been filed by them at the Winam Court.  I found no mention in the Court records concerning FELISTA ATIENO ABUOR AND ANOTHER VS KENYA COMMERCIAL BANK LIMITED AND ANOTHER, WINAM SRM’S COURT, CIVIL CASE NO. 112 OF 2013.

21. If the plaintiffs in the case at the Magistrate’s Court had failed to pay the costs of that suit, that would not be a basis for the dismissal of this suit which is before the High Court.

22. It is open to the defendants to take steps to execute the orders issued by the Magistrate’s Court.

23. Meanwhile, on 24th March 2015, Kaniaru J. ordered the plaintiff to file submissions.  The said order was made after the plaintiff had indicated a desire to file submissions.

24. Notwithstanding the order that submissions be filed, the plaintiff has failed to comply with that order to date.

25. Obviously, before an applicant makes submissions, the respondent will be unaware about that which he is to answer to.  Therefore, the defendants would not have been expected to file their submissions before the applicant had filed and served her submissions.

26. In my considered opinion, the conduct of the plaintiff is a clear demonstration of her disinterest in both the application for a temporary injunction and in the suit.

27. By the date when the defendants filed the application for the dismissal of the suit for want of prosecution, more than 12 months had lapsed from the time the case had last been in court.

28. In the circumstances, the defendants had a right to move the court as they did.

29. And the plaintiff has not tendered any explanation for the delay in taking steps to prosecute the suit.

30. Accordingly, there is no reason that would justify the continued sustenance of the suit, when the plaintiff has failed to take steps to prosecute it, and has also failed to provide a satisfactory explanation for the delay in prosecuting it.

31. In the result, the application dated 16th May 2016 has merit.  I order that the suit be dismissed for want of prosecution.

32. I also order that the plaintiff will pay to the defendants the costs of the application, together with the costs of the suit.

DATED, SIGNED and DELIVERED at KISUMUthis11thday ofSeptember 2018

FRED A. OCHIENG’

J U D G E