Mwangi Charles Mahinga & Edward Kings Onyancha Maina v Kenya Commercial Bank, Susan Outa Mudhune, Susan Nkirote Omanga, Peter Wanyaga Muthoka & Ernst & Young [2018] KEHC 3237 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

COMMERCIAL AND ADMIRALTY DIVISION – MILINANI LAW COURTS

CIVIL CASE NO. 246 OF 2008

MWANGI CHARLES MAHINGA................................1ST PLAINTIFF

EDWARD KINGS ONYANCHA MAINA................... 2ND PLAINTIFF

-VERSUS-

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

SUSAN OUTA MUDHUNE..........................................2ND DEFENDANT

SUSAN NKIROTE OMANGA.....................................3RD DEFENDANT

PETER WANYAGA MUTHOKA................................4TH DEFENDANT

ERNST & YOUNG........................................................5TH DEFENDANT

RULING

1. The Plaint in this matter was filed in the year 2008 by two Plaintiffs. Those Plaintiffs are Mwangi Charles Mahinda, the 1st Plaintiff, and Edward Kings, the 2nd Plaintiff. Throughout the hearing of the various interlocutory applications in this matter only the 2nd Plaintiff attended the court.

2. The matter came before me on 1st October 2018, when the Plaintiffs were required to show cause why this suit should not be dismissed for want of prosecution. Only the 2nd Plaintiff attended court on that date.

3. The 2nd Plaintiff pleaded with the court not to dismiss this suit. He stated that he wished to proceed with the formal proof of this case.

4. The 2nd Plaintiff further stated that the court file had gone missing from the Court Registry and that on writing to the Deputy Registrar he had received a reply by letter dated 22nd February 2017, whereby the Deputy Registrar informed him that the file was available.

5. At the initial stages of this suit there were flurries of Applications filed by the Plaintiffs. These Applications were before court until August 2010. Thereafter the matter was mentioned before Judges and a Deputy Registrar until 27th November 2012, when there was no activity in this matter.

6. The matter was listed on 30th March 2017, when the Judges ordered the parties to apply with pre-trial directions and once there was compliance to proceed to fix the matter for case management.

7. This matter went to sleep until the Notice to Show Cause dated 7th September 2018 was issued, which is what the 2nd Plaintiff responded to before me.

8. I have considered what the 2nd Plaintiff submitted. The 2nd Plaintiff did not show that indeed the file was missing from the Court Registry. What the Deputy Registrar letter communicated was that the file was available at the registry. Not that it had been missing.

9. Secondly, the 2nd Plaintiff failed to show cause for failing to prosecute this suit, even after receiving assurance from the Deputy Registrar on 22nd February 2017, that the file was available.

10. The 2nd Plaintiff erred to have submitted that this case was for formal proof. There is no evidence on the Court record that Interlocutory Judgment was entered against the Defendants. The Defendants filed a joint defence to the Plaintiffs’ case on 26th June 2008. There is no evidence, on the Court record, that that defence had been struck out.

11. It follows from this discussion that Plaintiff has failed to show cause why from February 2017, he failed to prosecute this case and further the 1st Plaintiff failed to show why from the inception of this suit he had failed to prosecute his case.

12. For the above reasons and because no satisfactory cause has been shown, the Plaintiffs’ suit is hereby dismissed for want of prosecution. To that end I order that this file be closed.

DATED, SIGNED and DELIVERED at NAIROBI this5thday of October,2018.

MARY KASANGO

JUDGE

Ruling read and delivered in open court in the presence of:

Court Assistant................Sophie

........................................ for the Plaintiffs

........................................ for the Defendants

MARY KASANGO

JUDGE