Titus Gitau Ngugi v Chase Bank Limited & Ann Wanjiru Kananda [2015] KEHC 1368 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL CASE NO.226 OF 2015

TITUS GITAU NGUGI ……………….………………........................…..PLAINTIFF

VERSUS

CHASE BANK LIMITED ……….…………………......................1ST DEFENDANT

ANN WANJIRU KANANDA………………….....................……2ND DEFENDANT

COURT RULING

This  suit and application dated  17th June 2015  were instituted  under certificate  of urgency and on 19th June 2015.  the matter  was placed  before Honourable Onyancha J Duty Judge  who directed that it be mentioned  on 24th June 2015.  On the latter date both the plaintiff and 1st defence counsels appeared and the matter was rescheduled for hearing on 6th July 2015.  The 1st defendant filed his replying affidavit.  The interim orders regarding motor vehicle KBW 254J were granted pending hearing on 6th July 2015.

On  6th July 2015 Mr Magara advocate  for the  plaintiff sought more time  to file a further  affidavit  and the court granted  him setting the matter for mention on 20th July 2015, with status quo being  maintained.  On 20th July 2015 all the parties advocates appeared before me.  Mr Wageni had just been instructed and he indicated to court that he needed time to file a reply.  In  the meantime, it was reported by Mr Wageni  for the 2nd defendant that  his client  was negotiating  with  1st defendant  on a settlement  of this matter  and the  court  did give the  parties a mention  date on 20th August  2015  before the Deputy Registrar.  On 20th August 2015 the record shows that only Mr Chege for 1st defendant appeared before the Deputy Registrar.  The other parties never appeared and the matter was later on the same day fixed by consent    for today’s hearing of the Notice of Motion.

Mr Wageni has never filed an affidavit that he has on each occasion sought leave and been granted.  On the other hand, the plaintiff is not here to prosecute the application dated 17th June 2015 and there is neither representation nor reasons given for their counsel’s absence.

In my view, justice is being delayed and denied in this matter.  The plaintiff who initiated the application under certificate of urgency being absent to prosecute his application, I find no reason why the matter should be kept in abeyance.  In the premises, I invoke the provisions of order 12 rule 3 of the Civil procedure Rules and dismiss the application dated 17th June 2015 for non attendance to prosecute.  The orders of injunction on record are hereby discharged.  The 1st defendant shall have costs of that application.

Orders accordingly.

R.E. ABURILI

JUDGE

30/9/2015