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ELCOtherNot stated in the judgment· [2019] KEELC 3730 (KLR)

David Kinyua Bedford v Co-operative Bank of Kenya [2019] KEELC 3730 (KLR)

High Court (Chuka) - judicial officer styled 'JUDGE'; court not expressly named in the judgment
1 April 2019
PNP. M. Njoroge
417 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court declined to fast-track a year-old reinstatement application because the lawyer served the other side only three days before the hearing.

What this practically means

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Executive summary

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This is a short interlocutory ruling delivered by P.M. Njoroge, Judge, at Chuka on 1st April, 2019, on a notice of motion dated 3rd May, 2018 and filed on 4th May, 2018. The applicant (plaintiff) sought orders to set aside or review the orders dismissing the suit for want of prosecution, to reinstate the matter for hearing, and that costs be in the cause. The grounds advanced were that the parties were negotiating out of court, that reinstatement would facilitate the negotiations, that the applicant was ready to settle what was owed to the bank, that no party would be prejudiced, and that there was sufficient reason to allow the application. When the application came up for inter partes hearing on 1st April, 2019, the respondent's advocate, Mr Murango Mwenda holding brief for Mr D. J. Mbaya, indicated he was not ready to proceed because he had been served only on Friday, 29th March, 2019, three days before the hearing. He stated the advocates had agreed the respondent could respond and that the parties would file written submissions. The court declined to certify the application as urgent because, although almost a year old, it had only been served days before the hearing. The court granted the respondent 14 days to respond, directed the applicant to file and exchange written submissions within 7 days of receiving the response, granted the respondent 7 days to reply regardless of the applicant's compliance, fixed confirmation of compliance for 6th May, 2019, and ordered that costs be in the cause. The reinstatement application was therefore not determined on the merits at this stage.

Key legal issues

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Whether the application to set aside the dismissal of the suit for want of prosecution and to reinstate the suit should be granted

Holding

The court did not determine the application on its merits; it issued directions for service, response, submissions and compliance, and declined urgent certification.

Reasoning

The application was filed on 4th May, 2018 but served on the respondent's advocate only on 29th March, 2019, three days before the hearing. The court noted the respondent had requested 14 days to respond and that the parties' advocates had agreed on a filing and submissions timetable. Rather than deciding the reinstatement application then, the court gave directions and set the matter for confirmation of compliance on 6th May, 2019, with costs in the cause.

p. 1

Legal principles established

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  • An application that is served shortly before the hearing date, despite being filed long before, may be denied certification of urgency and the respondent allowed time to respond.

Court orders

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  1. 1.The application is not certified urgent, given that it was filed on 4th May, 2018 and only served on Mr Mbaya on Friday, 29th March, 2019
  2. 2.The respondent is granted 14 days to respond to the application
  3. 3.The applicant is to file and exchange written submissions within 7 days after receipt of the respondent's written response
  4. 4.Whether or not the applicant files written submissions within the stipulated time, the respondent is granted 7 days after expiry of the period granted to the applicant to file and exchange its written submissions
  5. 5.Directions to confirm compliance with court orders on 6.5.2019
  6. 6.Costs shall be in the cause
Jurisdiction invoked
Inherent power of the court to set aside/review its own orders and reinstate a suit dismissed for want of prosecution (provision not expressly cited in the judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "David Kinyua Bedford v Co-operative Bank of Kenya [2019] KEELC 3730 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3730/eng@2019-04-01

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.