Brar v Muringa Holdings Ltd

3. The plaintiff deposes that even though he had complied with pre-trial directions and was ready and willing to prosecute his case, he was not aware that his advocate would not attend court and therefore the dismissal of the suit came as a surprise. 4. The plaintiff deposes that he has been unwell, in and out of hospital at Cleveland Clinic in London, where he underwent a major heart surgery leading to the replacement of a heart pacemaker, going by the annexed bundle of hospital records marked GSB (1). 5. The plaintiff deposes that mistakes of his counsel should not be visited upon an innocent litigant, especially when his claim is meritorious, and raises triable issues touching on unpaid rent and seeking the relief of a mandatory injunction for the defendant to vacate the suit property. T/he plaitiff applicant says that he will suffer irreparable loss if denied a hearing. 6. To the contrary, the plaintiff deposes that the defendant will suffer no prejudice if the suit is reinstated for hearing since any inconvenience occasioned to him can be compensated by way of costs. MILIMANI ELC CASE NO. 1469 OF 2014 2

page 2 of 13

7. The applicant is opposed through a replying affidavit sworn by George Mahugu on 20th July 2026. 8. The deponent deposes that he is an advocate of the High Court of Kenya practicing in the law firm of Wangai Nyuthe & Co. Advocates who are on the record for the defendant hearing and as such is personally seised of all relevant facts and issues hearing and has been authorized by the client to swear this affidavit. 9. The deponent states that before the order of dismissal of 2nd February 2023 the plaintiff had long gone to slumber. 10. The deponent further deposes that the plaintiff while aware fo the date knowingly fail to attend court to prosecute his case and matter was rightfully dismissed for non-attendance and that counsel reason for non attendance is intended to mislead the court and cloud issues since there is no evidence to support the same. 11. The deponent deposes that the plaintiff hearing shows to sit on his right and his moving court after an unexplained inordinate delay from the time of dismissal order. MILIMANI ELC CASE NO. 1469 OF 2014 3

page 3 of 13

12. The deponent deposes that the plaintiff filed this suit against the defendant sometimes in 2014 which is over 12 years ago. 13. It is deposed that the dismissal order having been issued on 2nd February 2023 which is over 3 years ago allowing the application after such a long inordinate delay whose plaintiff has not explained will cause the defendant prejudice as the plaintiff is guilty of latches. 14. The deponent deposes that the present application is misconceived ,mischievous, and an abuse of the court process. 15. In a further affidavit sworn by Simon Ngathaku Thamanga on 4th of August 2026, the deponent reiterates that he is the legally appointed Attorney of the plaintiff pursuant to the registration of the general power of Attorney no. 842 registered iwhtin the republic of kenya in the registry of document at Nairobi on 22 nd July 2026, a copy annexed and marked SGT 1. 16. It is also deposed that the plaintiff has been unwell before and after this case was dismissed and has been in and out of the hospital within the republic of kenya and in MILIMANI ELC CASE NO. 1469 OF 2014 4

page 4 of 13

United Kingdom . It is deposed that on or aboaut February 2023 the plaintiff pacemaker was replaced after he developed Hematoma . 17. It is further deposed that upon realizing the plaintiff’s medical condition was not getting better the plaintiff donated the general power of attorney to the deponent hearing thereby giving him power to sign documents including court document herein . The deponent deposes that the plaintiff is currently in South Africa where he is recuperating. 18. The plaintiff relies on written submissions dated 4 TH August, 2026 while the defendant relies on written submissions dated 17th August,2026. 19. The issue for determination is whether the plaintiff has given sufficient reason why the suit should be reinstated for hearing on merits. The court records show that this suit was amended by a plaint that was also accompanied by an interlocutory application seeking interim orders, which orders the court issued on 17.6.2015. 20. Thereafter, the parties were ordered to comply with Order 11 of the Civil Procedure Rules on 27.7.2015. MILIMANI ELC CASE NO. 1469 OF 2014 5

page 5 of 13

21. After several mentions, the matter was fixed for hearing on 1.2.2021 by the plaintiff's lawyer, Mr. Marete, ex parte, on 30.4.2020. 22. On 11.2.2021, the said Lawyer attended the hearing and said that he had not reached out to his client; he sought an adjournment. The court issued a mention date for 5.7.2021 to fix a hearing date. None of the parties attended. So the court fixed a mention date for 27.7.2021. 23. Another hearing date was then fixed for 5.10.2021. On that day, the plaintiff’s lawyer told the court that his client had been unwell. The lawyer hence prayed for another date. Since the defendant was present with his witnesses, the court reluctantly adjourned the matter to 30.11.2021. 24. When the matter came up on 30.11.2021, the plaintiff's counsel told the court that he was not ready to proceed for lack of communication with his client. The matter was once again adjourned with costs to the defendant. A mention date was fixed for 25.1.2022, 2.3.2022 and 27.4.2022 when a hearing date for 20.9.2022 was issued. 25. On 20.9.2022, the matter was once again adjourned to 2.2.2023. On 2.2.2023, the court declined a further MILIMANI ELC CASE NO. 1469 OF 2014 6

page 6 of 13

adjournment in view of a last adjournment order issued on 20.9.2022. The case was then dismissed for want of prosecution in the presence of the plaintiff’s lawyer. Mr. Waweru, who was holding brief for Mr. Marete. 26.From 2.2.2023 there was no action on the part of the plaintiff until 30.6.2026, when the instant application was filed. 27.Order 17 Rule 5, as read together with Order 12 of the Civil Procedure Rules, grants the court powers to dismiss the suit for both non-attendance and non-prosecution. For sufficient cause shown, a court may set aside a dismissal order or reinstate a suit for hearing on such terms as provided in Order 12 Rule 7 of the Civil Procedure Rules. 28. The threshold to be met by an applicant seeking a court to set aside its orders is the demonstration of sufficient cause as held in Wachira Karuri Vs Bildad Wachira (2016) eKLR. What amounts to sufficient cause depends on the circumstances of each case, as held in BML vs WM (2020) eKLR. 29.In Hon AG vs LSK & another, Civil Appeal Application No. 133 of 2011, the court said that MILIMANI ELC CASE NO. 1469 OF 2014 7

page 7 of 13

sufficient cause or good cause means the burden placed on a litigant to show why a request should be granted or an action excused. The court said that it should not be an explanation that leaves doubts in a judge’s mind or leaves unexplained gaps in the sequence of events. The court cited with approval Parimal Vs Veena (2011) 3 SCCS 45, that sufficient cause is an expression meaning adequate, sufficient, enough, and that the party had not acted negligently or that there was want of bona fides on its part in view of the facts and circumstances of a case, or the party cannot be alleged to have been not acting diligently or remaining inactive. 30.In this matter, the court records speak for themselves. A case does not belong to an advocate but to a litigant, who, as held in Savings and Loan (K) Ltd. Vs Susan Wanjiru Murithi, NRB Milimani HCCC No. 397 of 2002, has a duty to pursue the prosecution of his case and constantly check with his advocate on the progress of the matter. 31.In Mungai & others vs Mungai & others ELC Appeal E028 OF 2025 (2026) KEELC 3839 (KLR), the court MILIMANI ELC CASE NO. 1469 OF 2014 8

page 8 of 13

cited with approval Utalii Transport Co. Ltd & others Vs NIC Bank & another (2014) eKLR, Gideon Sitela Konchella Vs Daima BANK Ltd (2013) eKLR and Mobil Kitale Service Ltd Vs Mobil Oil ( K) Ltd (2004) eKLR, that it is the primary duty of the parties to assist the court in the expeditious disposal of suits and the case backlog would be a thing of the past of matters are disposed off expeditiously, and further that it is the plaintiff who drags the defendant to court who therefore should progress his case. 32.Mistake of counsel, though, should not be visited upon the litigant, as held in TARDA VS Jeremiah Kimighi Mwakio & others (2015) KECA 614 KLR, Belinda Murai & others vs Amos Waithaka (1979) KECA 25 KLR and in Philip Chemwolo & Another vs Augustine Kubede (1982-1988) KLR103, cannot be used as a blanket excuse. 33.Delay, negligence, laxity, and indifference of the plaintiff cannot be used, as held in Shah vs Mbogo and Another (1967) EA 116, as an excuse for setting aside by an indolent party. MILIMANI ELC CASE NO. 1469 OF 2014 9

page 9 of 13

34.Dismissal of a suit has been termed as a draconian measure. In deciding whether or not to reinstate a suit, the court looks into whether there is a reasonable explanation or sufficient cause for non-attendance, the interest of justice, and the prejudice to be suffered by the opposite party. 35. The discretion is not intended, as held in Shah Vs Mbogo (1979) EA 116, to assist a person who has deliberately sought, whether by evasion or otherwise, to obstruct or delay the cause of justice. In this suit, the plaintiff, instead of owning up to his mistakes, is blaming his erstwhile lawyers. 36.Lack of sincerity, falsehoods, disregard of court directions, numerous adjournments by his former counsel on record for lack of instructions, and the inordinate delay of almost three years since dismissal of the suit is what the court is faced with. Equity aids the vigilant but not the indolent. Delay defeats equity. 37.Lord Camden, L.C. in Smith Vs Clay (1767) Bro. C.C. 639n; 29E.R.743, held that nothing calls forth a court MILIMANI ELC CASE NO. 1469 OF 2014 10

page 10 of 13

into activity but conscience, good faith and reasonable diligence. 38.In Said Sweilem Gheithan Saanun vs Commissioner of Land and others (2015) KECA 284 KLR, the court said that under Article 159(2)(b) of the Constitution, court users have a constitutional duty to assist the court to ensure the timely and efficient disposal of cases. The court held that sections 1A & 1B of the Civil Procedure Act cannot be a panacea that heals every sore in litigation, nor a licence to parties to ignore or contravene the law and rules of procedure. 39.The court in this matter had given the plaintiff a last adjournment on 22.9.2022. After around six months, the plaintiff was nowhere to be found. His lawyer then on record did not know where the plaintiff was. The plaintiff does not state when he as last met, called, notified, or gave instructions to the said law firm, or went to them to know the progress of his case. 40.Lawyers should not be used as an excuse even when it is obvious a party had forgotten his file and left the lawyers to attend court without even instructions, only to turn MILIMANI ELC CASE NO. 1469 OF 2014 11

page 11 of 13

around when the day of reckoning comes and levy the blame on an innocent lawyer, who had endlessly in this case, attended court diligently without fail. 41.The court has looked at the attached medical reports. They are not certified. The reports do not show if they were ever forwarded to the former law firm. The medical reports do not show that the applicant was incapacitated to an extent that he could not even make a call or email his lawyers to notify the court of the status of his client. 42.At one stage the matter was adjourned on account of the plaintiff’s sickness. The court was not told that the plaintiff was in and out of the country seeking medication. As much as the court sympathizes with the plaintiff, much was expected from him, especially going by the medical reports, which do not cover the period of 2024 and 2025 43. Further, if at all the medical notes were to be believed, they show that after the successful operation, the plaintiff was inactive in court for two and a half years and made no efforts to contact his former lawyers in following up his matter. MILIMANI ELC CASE NO. 1469 OF 2014 12

page 12 of 13

44.The upshot is that the court finds no basis to set aside the orders dismissing the suit for want of prosecution. There is no evidence that the former law firm was served with the application seeking leave to come on record.It will serve no purpose to allow the prayer if there is no evidence of service or justification to reinstate the suit existed. 45.Costs to the defendant. 46.File marked closed. 47.Orders accordingly DATED, SIGNED AND DELIVERED THIS 16TH SEPTEMBER 2026 ……………………………. HON. JUSTICE C.K NZILI JUDGE In the presence of: 1. Chepng’etich for Kinyanjui for the plaintiff 2. Chegeche for Mahugu for the defendant C/A: Julius MILIMANI ELC CASE NO. 1469 OF 2014 13

page 13 of 13