Mwasame v Family Bank Ltd Bungoma & another [2024] KEHC 11462 (KLR)

Mwasame v Family Bank Ltd Bungoma & another (Civil Case 14 of 2019) [2024] KEHC 11462 (KLR) (30 September 2024) (Ruling)

Neutral citation: [2024] KEHC 11462 (KLR)

Republic of Kenya

In the High Court at Bungoma

Civil Case 14 of 2019

DK Kemei, J

September 30, 2024

Between

Gladys N. Mwasame

Plaintiff

and

Family Bank Ltd Bungoma

1st Defendant

Samuel S. Wanyonyi

2nd Defendant

Ruling

1. Vide an application dated 6th May 2024, the Plaintiff herein sought orders to have this Honourable Court reinstate her suit which was dismissed for want of prosecution on 15th December 2021.

2. The application was premised on the grounds on the face of the application and the affidavit in support sworn by the Plaintiff herein sworn on even date. The Plaintiff’s gravamen is inter alia; that the 1st Defendant’s loan defaulter had already engaged the bank with a view to settling the loan that she had guaranteed with security; that she had approached the court registry to follow up on the status of her matter and was advised that the dates would be communicated to her via her mobile phone; that she was surprised recently to be served with a notice of sale of her parcel of land and on rushing to court, she discovered that her suit had been dismissed for want of prosecution; that there will be no prejudice if the application is allowed.

3. The application was opposed by the 1st Defendant whose counsel filed a replying affidavit sworn on 27th May, 2024 wherein it was averred inter alia; that the applicant does not deserve the orders sought; that the applicant has moved the court three years after the dismissal of the suit for want of prosecution; that the application is an abuse of the court process and should be dismissed with costs.

4. Parties agreed to canvass the application by way of written submissions. However, it is only the 1st Defendant who complied.

5. I have given due consideration to the rival affidavits as well as the submissions presented. I find the only issue for determination is whether this suit ought to be reinstated.

6. The constitutional underpinnings on conclusion of matters in a timely manner is contained in Article 159 of the Constitution, which provides as follows:“Judicial authority(1)Judicial authority is derived from the people and vests in, and shall be exercised by, the courts and tribunals established by or under this Constitution.(2)In exercising judicial authority, the courts and tribunals shall be guided by the following principles—(a)justice shall be done to all, irrespective of status;(b)justice shall not be delayed;(c)alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms shall be promoted, subject to clause (3);(d)justice shall be administered without undue regard to procedural technicalities; and(e)the purpose and principles of this Constitution shall be protected and promoted.(3)Traditional dispute resolution mechanisms shall not be used in a way that—(a)contravenes the Bill of Rights;(b)is repugnant to justice and morality or results in outcomes that are repugnant to justice or morality; or(c)is inconsistent with this Constitution or any written law.”

7. It is the duty of the Court, litigants, as well as advocates, to ensure that matters are concluded expeditiously without inexcusable delay. Sections 1A and IB, of the Civil Procedure Act, Cap 21, Laws of Kenya, are relevant, with regard to this and they state as follows:“1A.Objective of Act(1)The overriding objective of this Act and the rules made hereunder is to facilitate the just, expeditious, proportionate and affordable resolution of the civil disputes governed by the Act.(2)The Court shall, in the exercise of its powers under this Act or the interpretation of any of its provisions, seek to give effect to the overriding objective specified in subsection (1).(3)A party to civil proceedings or an advocate for such a party is under a duty to assist the Court to further the overriding objective of the Act and, to that effect, to participate in the processes of the Court and to comply with the directions and orders of the Court.1B.Duty of Court(1)For the purpose of furthering the overriding objective specified in section 1A, the Court shall handle all matters presented before it for the purpose of attaining the following aims—(a)the just determination of the proceedings;(b)the efficient disposal of the business of the Court;(c)the efficient use of the available judicial and administrative resources;(d)the timely disposal of the proceedings, and all other proceedings in the Court, at a cost affordable by the respective parties; and(e)the use of suitable technology.”

8. Section 3A of the Civil Procedure Act gives the Court wide discretion over matters and issues that are before it, including the question as to whether it should or should not reinstate a suit dismissed on account of unreasonable delay on the part of the parties to prosecute it. Section 3A reads:“3A. Saving of inherent powers of court. Nothing in this Act shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.”

9. The factors taken into consideration for the purpose of reinstatement of suits are numerous, and were addressed in Ivita vs. Kyumbu [1984] KLR 441 (Chesoni J), where the Court stated:“The test is whether the delay is prolonged and inexcusable, and, if it is, can justice be done despite such delay. Justice is justice to both the Plaintiff and Defendant; so both parties to the suit must be considered and the position of the judge too, because it is no easy task for the documents, and, or witnesses may be missing and evidence is weak due to the disappearance of human memory resulting from lapse of time. The Defendant must however satisfy the court that it will be prejudiced by the delay or even that the plaintiff will be prejudiced. He must show that justice will not be done in the case due to the prolonged delay on the part of the plaintiff before the court will exercise its discretion in his favour and dismiss the action for want of prosecution. Thus, even if delay is prolonged if the court is satisfied with the plaintiff's excuse for the delay, the action will not be dismissed, but it will be ordered that it be set down for hearing at the earliest available time.”

10. Ivita vs. Kyumbu [1984] KLR 441 (Chesoni J) was followed in Jim Rodgers Gitonga Njeru vs. Al-Husnain Motors Limited & 2 others [2018] eKLR (Muchemi J), where the Court said:“It is my view that such would be valid considerations in an application for dismissal of suit for want of prosecution, which in this case has already been done; and it is manifest from the record that the reason why the suit was dismissed in the first place was that the Court was satisfied there was inordinate delay of 3 years for which there was no explanation.”

11. Reinstatement of a suit is at the discretion of the Court, which discretion ought to be exercised in a just manner, as was held in Bilha Ngonyo Isaac vs. Kembu Farm Ltd & Another [2018] eKLR ((JN. Mulwa J), which echoed the decision of the Court in Shah vs. Mbogo & Another (1967) EA 116 (Harris J), where the Court stated on the matter of discretion:“The discretion is intended so as to be exercised to avoid injustice or hardship resulting from inadvertence or excusable mistake or error but is not designed to assist a person who has deliberatively sought whether by evasion or otherwise to obstruct or delay the course of justice.”

12. One of the issues that usually confronts the Courts with respect to dismissal of suits for delays and the subsequent applications for reinstatement, is the need for expeditious conclusion of suits. In Mobile Kitale Service Station vs. Mobil Oil Kenya Limited & another [2004] eKLR Warsame J (as he then was) held:“I must say that the Courts are under a lot of pressure from backlogs and increased litigation, therefore it is in the interest of justice that litigation must be conducted expeditiously and efficiently so that injustice caused by delay would be a thing of the past. Justice would be better served if we dispose matters expeditiously. Therefore, I have no doubt the delay in the expeditious prosecution of this suit is due to the laxity, indifference and/ or negligence of the plaintiff. That negligence, indifference and/or laxity should not and cannot be placed at the doorsteps of the defendant. The consequences must be placed on their shoulders.”

13. I am not entirely convinced by the arguments put forward by the Plaintiff to explain her non-attendance in Court as and when required, and generally her failure to have the matter prosecuted since 2019 when it was filed. It seems the Plaintiff relied on the discussions between the borrower and the bank and thus literally went to sleep. She has now been woken up from slumber upon being served with a notification of sale of her property. It is also noted that the parties herein had already complied with the provisions of Order11 of the Civil Procedure Rules and that the matter had been ready for hearing. It is also noted that the Plaintiff is acting in person and that justice will be served if she is given an opportunity to prosecute her case. I will, however, in the interest of justice, only so as to give her a second chance, allow the application, and reinstate the suit herein.

14. Consequently, and in view of the foregoing observations, the Plaintiff’s application dated 6. 5.2024 has merit. The same is allowed on condition that the Plaintiff pays throwaway costs of Kshs. 30, 000. 00 to the 1st Defendant within the next seven (7) days from the date hereof and in default, the reinstatement order shall lapse. The matter is fixed for mention on 16. 10. 2024 for further directions.It is so ordered.

DATED AND DELIVERED AT BUNGOMA THIS 30TH DAY OF SEPTEMBER 2024D. KEMEIJUDGEIn the presence of :Gladys Nanjala for Plaintiff/ApplicantWere for 1st Defendant/RespondentNo appearance 2nd Defendant/RespondentKizito Court Assistant