Maina v Khagram & 2 others [2023] KEHC 26304 (KLR)

Maina v Khagram & 2 others (Civil Case 247 of 2019) [2023] KEHC 26304 (KLR) (Civ) (8 December 2023) (Ruling)

Neutral citation: [2023] KEHC 26304 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Case 247 of 2019

DAS Majanja, J

December 8, 2023

Between

Jennifer Maina

Plaintiff

and

Sanjeev Khagram

1st Defendant

Roselyne Njoroge

2nd Defendant

Isaac Kyalo Musembi

3rd Defendant

Ruling

1. On 12. 04. 2023, the court (Visram J.,) ordered the Plaintiff to deposit Kshs. 1,500,000. 00 as security for costs for the 1st Defendant in a joint interest-earning account held as between the advocates for the Plaintiff and the 1st Defendant and that the same was to be deposited within 60 days lest the suit stands dismissed. The Plaintiff has now filed the Notice of Motion dated 08. 11. 2023 seeking extension of time to furnish the said security and for the court hold that the security of Kshs. 1,500,000 deposited on 22. 06. 2023 be deemed as duly furnished in satisfaction of the Court’s order and that as a result, that the suit be reinstated.

2. The Plaintiff avers that the time granted for depositing the security for costs lapsed on close of business day on 12. 06. 2023. That once the court issued the order, she embarked on sourcing funds and on 02. 06. 2023 she had provided the said funds and her advocates on record embarked on setting up the joint interested earning account at ABSA Bank Kenya. That on 05. 06. 2023, counsel on record for the 1st Defendant refused to execute the account opening forms and erroneously insisted that the court had directed that the Bank Account should be opened at KCB Bank - KENCOM Branch. That this position held by the 1st Defendant’s Counsel led to a lot of time being wasted in back and forth until the security for costs was deposited on 22. 06. 2023, 10 days after the lapse of the deadline. The Plaintiff urges that no prejudice will be suffered if this application is allowed as the delay was not intentional.

3. The 1st Defendant opposes the application through its Grounds of Opposition dated 14. 11. 2023. He states that the Plaintiff is seeking an equitable remedy and has not come to court with clean hands. That she has failed to furnish any grounds upon which the court may exercise discretion in her favour. That there has been an inordinate delay in filing the application and that the application is an abuse of the court process.

4. I have considered the factS set out in support of the application and I take the following view of the matter. The suit stood dismissed on 12. 06. 2023 when the Plaintiff failed to deposit the security of costs as ordered by the court on 12. 04. 2023. Under Order 26 Rule 5(2) of the Civil Procedure Rules, the court has discretion to extend time for giving the said security if, “the Plaintiff proves that he was prevented by sufficient cause” and “the court may set aside the order dismissing the suit and extend the time for giving the required security”. The Plaintiff explained that the reasons for the delay was due to an apparent confusion as to the domicile of the joint-interest earning account with the 1st Defendant’s counsel insisting on KCB Bank whereas the Plaintiff was already in the process of setting up one at ABSA Bank. I have gone through the correspondences in support of this position by the Plaintiff and I am satisfied that the uncertainty or mix-up as to the domicile of the joint interest-earning account may have caused the delay in opening the account and depositing the security. Either way, the delay cannot be said to be intentional. The security has already been furnished, even though 10 days late, which delay I do not consider inordinate.

5. Since the 1st Defendant’s position is now secured, I allow the Plaintiff’s application dated 08. 11. 2023 and order as follows:a. The security for costs for the 1st Defendant of Kshs. 1,500,000. 00 provided by the Plaintiff and deposited on 22. 06. 2023 in a joint interest earning account is deemed as duly furnished in satisfaction of the order dated 12. 04. 2023 and that the suit be and is hereby reinstated.b. The Plaintiff shall pay the 1st Defendant costs of the application assessed at Kshs. 20,000. 00 to be paid within 7 days from the date hereof.

DATED AND DELIVERED AT NAIROBI THIS 8TH DAY OF DECEMBER 2023. D. S. MAJANJAJUDGECourt Assistant: Mr M. OnyangoMr Mugo instructed by Miller and Company Advocates for the Plaintiff.Ms Janmohamed, SC for the Archer and Wilcock Advocates for the 1st Defendant.HCCC NO. 247 OF 2019 RULING Page 2