Getrude Wachuka Kamau (suing As Personal Representative of The Estate of Samuel Kabii Kamau (deceased)) v Samson Mbuthia Kinyanjui & 2 others

3. Mr. Mungania expressed regret for the delay and apologized to the Court and the parties herein. He stated that the fresh suit has since been prepared and a draft of the plaint, related pleadings, and Summons to enter appearance have been annexed to the instant application. He asserted that the delay in filing the suit was neither deliberate nor intentional but inadvertent. He further stated that the said delay was slight, excusable and has been addressed without undue delay. Mr. Mungania contended that no party would suffer prejudice in the event that the orders being sought herein are granted. 4. In opposition to the application, the defendants filed a replying affidavit sworn on 13th January 2025 by Mr. Samson Mbuthia Kinyanjui, the 1st defendant herein. He averred that the plaintiff has consistently failed to comply with Court orders, thereby prejudicing the defendants and undermining the course of justice. He recalled that in Miscellaneous Application No. E493 of 2019, the plaintiff was granted leave on 25th February 2022 to file a derivative suit within 120 days, but failed to do so. He contended that an application by the defendants to discharge those orders was dismissed, thereby enlarging the plaintiff’s time. That thereafter, the plaintiff filed HCOMM No. 044 of 2023, which was struck out on 15th November 2024 for being irregular and illegal. 5. Mr. Mbuthia averred that in that Ruling, the Court granted the plaintiff a further 14 days to file the substantive suit in compliance with the orders made on 25th February 2022 and the Court also ordered payment of Kshs.40,000/= in costs. Mr. Kinyanjui further averred that the plaintiff again failed to comply with the prescribed timelines, leading to the automatic lapse of the leave granted on 25th February 2022. He asserted that the cumulative delay of approximately 34 months is inordinate and inexcusable, and contrary to the principles of expeditious and cost-effective justice. He deposed that the suit is now moot as the BCLB License forming its basis expired in 2019 and the plaintiff has not paid the ordered costs. He maintained that the reasons advanced for extension of time are flimsy, especially since the plaintiff’s Counsel was present in Court when the orders were granted. 6. In a rejoinder, the plaintiff filed a supplementary affidavit sworn on 29th January 2025 by Mr. Jason Kiambi Mungania, an Advocate of the High Court of Kenya and learned Counsel for the plaintiff. Mr. Mungania contended that in earlier instances of delay, the Court had granted the orders sought and the defendants did not appeal against those decisions. He explained that the current delay is only six (6) days, which he believes is neither inordinate nor inexcusable. He stated that the instant application has been brought under Section 95 of the Civil Procedure Act and Order 50 Rule 6 of the Civil Procedure, Rules, 2010, which empower Courts to enlarge time even after the expiry of the period originally fixed. Mr. Mungania clarified that the plaintiff’s suit is not limited to the issue of License No. BCLB E0000085, as the draft plaint also sets out particulars of breach of contract, breach of duty, fraud and resulting loss. 7. The application herein was canvassed by way of written submissions. The plaintiff’s submissions were filed by the law firm of JK Mungania & Company Advocates on 7th February 2025, whereas the defendants’ submissions were filed on 19th March 2025 by the law firm of Cuna & Associates Advocates. 8. Mr. Mungania, learned Counsel for the plaintiff submitted that the failure to file a fresh suit within the prescribed timelines was due to an inadvertent mistake by Counsel. He relied on the Court of Appeal cases of Belinda Murai & 6 others v Amos Wainaina [1978] KLR and Martha Wangari Karua v IEBC Nyeri Civil Appeal No. 1 of 2017, and submitted that a litigant should not be made to suffer for the mistake of Counsel. He urged this Court to exercise its discretion under Section 95 of the Civil Procedure Act, Order 50 Rule 6 of the Civil Procedure Rules, 2010 and Section 59 of the Interpretation and General Provisions Act, which allow extension of time even after expiry of the original period. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18219/eng@2025-11-28 2

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Counsel asserted that the suit raises serious weighty issues involving allegations of fraud, breach of duty and failure to account for profits, thus it deserves to be determined on merits at a full hearing. 9. Ms Cuna, learned Counsel for the defendants submitted that the plaintiff has since 25th February 2022 failed to comply with several Court directions requiring her to file a derivative suit within specified timelines. That despite being granted 120 days to do so, followed by additional opportunities including a 14-day extension granted on 15th November 2024, the plaintiff neither filed the suit nor paid the Kshs.40,000/= costs ordered by the Court, demonstrating a lack of diligence and seriousness. She submitted that the instant application is a further attempt by the plaintiff to perpetuate delay, abuse the Court process and disregard lawful Court orders. To buttress these submissions, Counsel relied on the Court of Appeal case of Benjoh Amalgamated Limited & another v Kenya Commercial Bank Limited [2014] KECA 872 (KLR) and the English case of The Lindsay Petroleum Co v Hurd (1874) L.R. 5 P.C. 221. 10. Ms Cuna argued that the plaintiff’s persistent non-compliance has caused the defendants prejudice and wasted judicial time and resources and urged this Court to uphold its authority by declining to indulge further non-compliance. On the issue of whether the mistake of Counsel should excuse the plaintiff, she relied on the case of Econet Wireless Kenya Ltd v Minister for Information & Communication of Kenya & another [2005] 1 KLR 828 and the Court of Appeal case of Kaana Ka Arume Co Ltd v Nampaso [2024] KECA 1637 (KLR), and submitted that it should not, since the case belongs to the litigant who bears the responsibility of ensuring compliance. Counsel urged this Court to find that the plaintiff’s conduct amounts to abuse of the Court process, deliberate disregard of Court Orders and inordinate delay. Analysis And Determination. 11. I have considered the application filed herein, the grounds on the face of it and the affidavits filed in support thereof, the replying affidavit by the defendants and the written submissions by Counsel for the parties. The issue that arises for determination is if the applicant should be granted extension of time to file a derivative suit. 12. The plaintiff seeks an order for extension of time to comply with the leave granted in Miscellaneous Application No. E493 of 2019 to file a derivative action. The plaintiff contends that on 15th November 2024, the Court directed her to file a fresh suit within fourteen (14) days, failure to which the extension of time previously granted would lapse automatically. The plaintiff’s Advocate stated that due to an administrative oversight in his office, the file was not brought to his attention promptly, resulting in the failure to file the fresh suit within the prescribed period. 13. This Court’s power to extend time is provided for under the provisions of Order 50 Rule 6 of the Civil Procedure Rules, 2010, which states that – “ Where a limited time has been fixed for doing any act or taking any proceedings under these Rules, or by summary notice or by order of the court, the court shall have power to enlarge such time upon such terms (if any) as the justice of the case may require, and such enlargement may be ordered although the application for the same is not made until after the expiration of the time appointed or allowed: Provided that the costs of any application to extend such time and of any order made thereon shall be borne by the parties making such application, unless the court orders otherwise." https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18219/eng@2025-11-28 3

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14. The guiding principles when it comes to extension of time were laid down by the Supreme Court in the case of Salat v Independent Electoral and Boundaries Commission & 7 others [2014] KESC 12 (KLR), as hereunder“ This being the first case in which this Court is called upon to consider the principles for extension of time, we derive the following as the underlying principles that a Court should consider in exercise of such discretion: 1. extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the Court; 2. a party who seeks…extension of time has the burden of laying a basis to the satisfaction of the Court; 3. whether the Court should exercise the discretion to extend time, is a consideration to be made on a case-to-case basis; 4. [where] there is a reasonable [cause] for the delay, the delay should be explained to the satisfaction of the Court; 5. whether there will be any prejudice suffered by the respondents if the extension is granted; 6. whether the application has been brought without undue delay; and 7. Whether in certain cases, like election petitions, public interest should be a consideration for extending time. 15. In Miscellaneous Application No. E493 of 2019, the plaintiff was granted leave on 25th February 2022 to file a derivative suit within 120 days, but failed to comply. Subsequently, on 15th November 2024, the Court granted the plaintiff a further 14 days to file the derivative suit in accordance with the earlier orders and directed payment of Kshs.40,000/= in costs, but to date the plaintiff has neither filed the suit nor settled the said costs. 16. The plaintiff attributes the failure to file the derivative suit within the prescribed timelines to an inadvertent mistake by her Advocates on record. The plaintiff therefore urges this Court not to penalize her for the errors of her Counsel. Where the interests of justice so require, mistakes by Advocates even when they amount to blunders, should not be visited upon their clients, particularly where the situation can be adequately remedied by an award of costs. In Lucy Bosire v Kehancha Div Land Dispute Tribunal & 2 others [2013] KEHC 681 (KLR), the Court affirmed this position and held that “ It must be recognized that blunders will continue to be made from time to time and it does not follow that because a mistake has been made a party should suffer the penalty of not having his case determined on its merits. See Philip Keipto Chemwolo & Another v Augustine Kubende [1986] KLR 492; [1982-88] 1 KAR 1036 at 1042; [1986-1989] EA 74." 17. The plaintiff and her Advocates on record were granted 120 days, followed by an additional 14 days to file the derivative suit, yet they failed to comply or file the suit within the stipulated timelines. It is also undisputed that alongside the 14-day extension granted on 15th November 2024, the Court ordered the plaintiff to pay the defendants costs of Kshs.40,000/=. The said costs however remain unpaid, and the plaintiff has neither addressed this issue nor indicated any intention or plan to settle the same, despite the matter having been raised in the defendants’ replying affidavit. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18219/eng@2025-11-28 4

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18. This conduct, demonstrates a lack of diligence and good faith on the part of the plaintiff and her Advocates on record. It is now well settled that not every mistake by Counsel is sufficient to justify non-compliance with Court orders or failure to act within timelines set by law. The Court of Appeal in the case of Tana and Athi Rivers Development Authority v Jeremiah Kimigho Mwakio & 3 others [2015] KECA 674 (KLR) articulated this principle as follows – …From past decisions of this court, it is without doubt that courts will readily excuse a mistake of counsel if it affords a justiciable, expeditious and holistic disposal of a matter. However, it is to be noted that the exercise of such discretion is by no means automatic. While acknowledging that mistake of counsel should not be visited on a client, it should be remembered that counsel’s duty is not limited to his client; he has a corresponding duty to the court in which he practices and even to the other side. (See. Halsbury’s Laws of England, 4th Edn, Vol 44 at p 100-101) and also Re Jones [1870], 6 Ch. App 497 in which Lord Hatherley communicated the court’s expectations this way: ‘….I think it is the duty of the court to be equally anxious to see that solicitors not only perform their duty towards their own clients, but also towards all those against whom they are concerned…’ Under this duty, counsel is unequivocally obliged to exercise candor and not aid a litigant in subversion of justice. Even though the determination of whether or not counsel has failed in this obligation is dependent on the circumstances of a case, as a custodian of justice, the court must always stay alive to the interests of both parties. This is of paramount importance. Thus, there is a corollary to the hallowed maxim that mistakes of counsel should not be visited on a client… Hence, the mistakes of Mr. Mouko’s clerk became the mistakes of Mr. Mouko. This takes us back to the question, was the same excusable enough to warrant court’s favour? In determining whether to exercise the discretion in a party’s favour, the court pays regard to the damage sought to be forestalled vis a vis the prejudice to be visited on the opposing party. In view of the age of this case and the timelines within which the appellant has acted, we take the view that the appellant has been less than candid with the court and that the appellant’s true intentions are the derailment of the suit…... The respondents were basically being held at ransom by the appellant’s laxity in having the matter laid to rest.... As stated by this Court in the case of Habo Agencies Limited v Wilfred Odhiambo Musingo [2015] eKLR “It is not enough for a party in litigation to simply blame the Advocates on record for all manner of transgressions in the conduct of the litigation. Courts have always emphasized that parties have a responsibility to show interest in and to follow up their cases even when they are represented by counsel.” 19. The plaintiff was granted a total of 134 days to file the derivative suit but failed to do so. In addition, she neither paid the Court-ordered costs of Kshs.40,000/=. This conduct amounts to willful disregard of Court Orders rather than the inadvertent mistake of her Counsel as alleged by the plaintiff and her Counsel. This Court therefore finds that this persistent pattern of non-compliance disentitles the plaintiff to the equitable relief being sought herein. 20. The upshot is that the application herein is devoid of merits. It is hereby dismissed with costs to the defendants. It is so ordered. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18219/eng@2025-11-28 5

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DATED, SIGNED AND DELIVERED AT NAIROBI ON THIS 28TH DAY OF NOVEMBER, 2025. RULING DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM. NJOKI MWANGI JUDGE In the presence of:Ms Mungania for plaintiff/applicant Ms Wanjiru h/b for Ms Cuna for the defendants/respondents Ms B. Wokabi – Court Assistant. NJOKI MWANGI, J. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18219/eng@2025-11-28 6

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