Maxwell Maurice Odhiambo & 1 other v Kenya Commercial Bank Limited

Issues for Determination 4. Having considered the pleadings, affidavits and submissions, the sole issue for determination is whether this suit should be dismissed for want of prosecution under Order 17, rule 2. Analysis and Determination 5. Order 17, rule 2(1) of the Civil Procedure Rules provides:-In any suit in which no application has been made or step taken by either party for one year, the court may give notice in writing to the parties to show cause why the suit should not be dismissed, and if cause is not shown to its satisfaction, may dismiss the suit. 6. The test to be applied was set out in Nzoia Sugar Company Limited v West Kenya Sugar Limited [2020] eKLR, and adopted in Ivita v Kyumbu [1984] KLR 441, namely:c. Whether the delay is likely to cause prejudice to the Defendant. b. Whether the delay is excusable; and a. Whether the delay is inordinate; 7. The rationale is anchored on Article 159(2)(b) of the Constitution that justice shall not be delayed, and on the overriding objective under Sections 1A and 1B of the Civil Procedure Act, which enjoin courts to facilitate the expeditious and proportionate resolution of disputes. 8. The record confirms that no step has been taken to prosecute this matter since 6th April, 2023, when the interlocutory application was dismissed — a period of about twenty-three (23) months by the time the present motion was filed. The Plaintifis have not filed their trial bundle, nor fixed the suit for hearing, despite several mentions. 9. The Plaintifis’ explanation for the delay — that Counsel mis-diarised one mention date - does not account for the prolonged inactivity from April 2023 to January 2025. Nor have they demonstrated any concrete step towards amending their pleadings or preparing the matter for hearing. 10. In George Gatere Kibata v George Kuria Mwaura & Another [2017] eKLR, the court held that a suit qualifies for dismissal if no step has been taken for over one year. Likewise, in Utalii Transport Co. Ltd & 3 Others v NIC Bank Ltd & Another [2014] eKLR, the court observed that “litigation must come to an end; the sword of Damocles cannot indefinitely hang over a Defendant’s head.” 11. I find the delay herein inordinate and inexcusable. The Plaintifis have failed to demonstrate any active intention to prosecute their claim or comply with prior directions of this Court. No evidence was annexed to the replying affidavit to show that any attempts have been made to prosecute the matter beyond mere statements. The continued pendency of the matter, in the absence of prosecutorial zeal, is indeed prejudicial to the Defendant who remains exposed to litigation anxiety, expense, and uncertainty over property subject to the suit. 12. The discretion to dismiss a suit for want of prosecution must be exercised judiciously, bearing in mind that dismissal is a draconian step which should be resorted to, only where the delay is so inordinate that it renders a fair trial impossible. 13. In this case, given the long period of dormancy and absence of credible explanation, I am not persuaded that the Plaintifis deserve the Court’s discretion. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14669/eng@2025-10-16 2

page 2 of 3

Conclusion and Orders 14. In the result, I find that the Defendant’s application dated 30th January, 2025, is merited. Accordingly:-1. The Plaintifis’ suit filed on 29th September, 2022, is hereby dismissed for want of prosecution pursuant to Order 17, rule 2 of the Civil Procedure Rules, 2010. 2. Costs of the application and of the suit shall be borne by the Plaintifis. 15. It is so ordered. DATED AND DELIVERED VIRTUALLY VIA MICROSOFT TEAMS THIS 16TH}} DAY OF OCTOBER, 2025 ALEEM VISRAM, FCIArb JUDGE In the presence of; Court Assistant: Lisper ……………………………for 1st Plaintifi/Respondent ……………………………for 2nd Plaintifi/Respondent ……………………………Defendant/Applicant https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14669/eng@2025-10-16 3

page 3 of 3