Jackson Kamau Ndegwa & Sarah Njeri Kamau v Housing Finance Company of Kenya Limited, Nakuru District Land Registrar,Joram Kipsang Marachi & Cheruiyot Bii Stanley [2017] KEHC 3996 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAKURU

CIVIL  CASE NO. 143 OF 2011

JACKSON KAMAU NDEGWA......................................................1ST PLAINTIFF/APPLICANT

SARAH NJERI KAMAU................................................................2ND PLAINTIFF/APPLICANT

VERSUS

HOUSING FINANCE COMPANY OF KENYA LIMITED.......1ST DEFENDANT /RESPONDENT

NAKURU DISTRICT LAND REGISTRAR..........................................1ST INTERESTED PARTY

JORAM KIPSANG MARACHI...........................................................2ND INTERESTED PARTY

CHERUIYOT BII STANLEY.................................................................3RD INTERESTED PARTY

RULING

1. By an application dated the 11th May 2017, the applicant Jackson Kamau Ndegwa seeks orders that this court be pleased to set aside its dismissal of the suit orders dated 10th May 2017 and review the same.  The Legal provisions under which the application is brought are irrelevant, being constitutional provisions and Section 5 and 6 of the Judicature Act, Chapter 8 Laws of Kenya.

2. However, I am guided by Article 159(d) of the Constitution and Section 1A, 1B and 3 of the Civil Procedure Actto dispense justice without undue regard to procedural technicalities. I will do so, and determine the application on its merits as presented by the applicant and opposed by the  the 1st Defendant/Respondent.

3.  The 1st, 2nd and 3rd interested parties  do not oppose the application.  The reasons advanced by the applicant for his failure to attend court on the 10th May 2017 to prosecute his application which lead to the dismissal orders are not persuasive for lack of reasonable and sufficient grounds.

His assertion that the court ought to have perused through the court file and to find that there was a hearing notice from the Court of Appeal, involving the applicant on the same day, and not brought to the courts attention cannot be a good argument or reason to persuade the court to set aside its dismissal orders.   It is the applicant who ought to have brought the matter of the Court of Appeal application hearing to the courts attention, and not otherwise.  It is not the business of the court.

In the circumstances the courts finds that there was no error on its part or at all in its decision to dismiss the suit.

4. I agree with the grounds of opposition advanced by the 1st Defendant.  Indeed no grounds pursuant to provisions of Order 45 of Civil Procedure Rules to persuade the court to review its decision were advanced.  To that extent the application lacks merit.  The 1st, 2nd and 3rd parties do not oppose the application.

5.  The orders sought to be set aside dismissed the applicant's suit for want of prosecution and non attendance.

I have considered the grounds upon which it is based.  The dispute between the parties involves a commercial dispute, a loan advanced to the applicant by the Defendant, Housing Finance Company Limited.

The Bank is desirious of realising the security charged property for failure by the applicant to repay the loan which increases day after day due to accrued interest.  The said loan was advanced to the applicant in June 1985.

6. Justice ought to be dispensed to all parties to a suit.  I am of the considered view that justice will be met and dispensed to the parties by granting an order  setting aside the dismissal order issued on the 10th May 2017, and upon my discretion allow each to ventilate their case on merits.  See my orders issued on the 31st January 2017.  I therefore proceed to allow the application dated 11th March 2017 in terms of prayer No. 2.  This will however not be  without conditions.

7. Reiterating the court observations on the 30th July 2012 (Hon. W. Ouko, as he then was), in this case that:

“----in total, the applicants have brought (5) five suits in respect of the same suit property against the same respondent and seeking the same orders.  Such conduct cannot be condoned or encouraged.  The court must not allow itself to be used in this manner.

---they must decide what to do with all these suits if they expect their grievances to be determined with finality.”

8. Following therefore, the parties to this case and particularly the 1st plaintiff/applicant are directed to:

(a) Within 45 days to comply with Order II of the Civil Procedure   Rules 2010 and to file and serve all their    documents and witness statements that they intend to rely  on during the hearing of the case.

(b) Attend court to take pretrial directions and a hearing date for the case on the 20th September 2017 at 9. 00a.m.

(c) Default by the applicant to comply with the above (a) and b) will result to the case being dismissed.

9.  Costs in the cause.

Dated, Signed and delivered this 13th Day of July 2017.

J. N. MULWA

JUDGE