St Elizabeth Academy Karen v National Bank of Kenya

unsuccessful appeal. The Defendant further argues that the Plaintiff repeatedly failed to pursue the case despite being given chances by the Court. This led to the dismissal for lack of prosecution on 27th April 2022. The current application is said to be excessive, unfounded, and an abuse of the court process. 5. The application was canvassed by way of written submissions. Analysis and determination 6. The issues that arise for determination are: i. Whether the Applicant has met the threshold for review, ii. Whether there is sufficient cause has been shown to warrant setting aside the dismissal, and iii. Whether the other reliefs sought are warranted. 7. Order 45 Rule 1 permits review on the grounds of discovery of new and important matter or evidence, error apparent on the face of the record, or any other sufficient reason, provided the application is made without unreasonable delay. 8. The rules governing review were clearly outlined in National Bank of Kenya Ltd v Ndungu Njau [1997] eKLR. The Court of Appeal stated that review is not a way for a party to rehearse its case or correct legal errors. It focuses on fixing clear mistakes or considering new evidence that could not have been produced earlier with due diligence. 9. The Applicant has not shown any new and significant evidence or pointed out any obvious mistake on the record. The complaint is mainly that she was not aware of the hearing date because her previous advocates did not inform her. This does not meet the strict criteria of Order 45. 10. Therefore, the request for review under Order 45 is not justified. 11. Order 12 Rule 7 gives the Court the power to set aside or change a judgment or order made in default under fair terms. This discretion aims to enable the Court to deliver justice to the parties. 12. The discretion is unrestricted but must be exercised responsibly. In Shah v Mbogo & Another [1967] EA 116, the Court noted that the discretion aims to avoid injustice or hardship from accidents, mistakes, or inadvertence, and not to aid someone who has deliberately tried to obstruct justice. 13. In Ivita v Kyumbu [1984] KLR 441 the Court indicated that in cases regarding dismissal for lack of prosecution, the test is whether there is enough reason for the delay and if justice can still be served despite the delay. 14. The record shows that this suit was started in 2013 and has been the focus of many interlocutory applications and an appeal. The Defendant's testimony, which remains unchallenged, indicates that the Plaintiff was given multiple opportunities to pursue the case but did not. 15. The court record confirms that the Plaintiff was granted leniency on several occasions despite a lack of attendance and effort. The dismissal order was made on 27th April 2022 because the Court found that the Plaintiff had failed to pursue the case and that no valid reason had been provided for additional delays. The current application was filed on 28th March 2023, nearly eleven months later. The provided explanation is that the Applicant only reviewed the court file in February 2023 and faced communication issues with prior counsel 16. While a mistake by counsel may sometimes be a valid reason, it does not apply universally. A litigant should actively pursue their case and cannot fully delegate responsibility to their attorney. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3451/eng@2026-03-12 2

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17. Litigation belongs to the parties. A party that files a suit must be diligent. The Applicant has not shown what steps, if any, were taken between April 2022 and February 2023 to follow up on the matter. The delay remains largely unexplained. 18. In CMC Holdings Ltd v James Mumo Nzioki Civil Appeal No 329 of 2001 [2004] eKLR the Court of Appeal held that the discretion to set aside is meant to ensure that a litigant does not suffer injustice as a result of an excusable mistake. However, that discretion must not be exercised in favour of a litigant who has failed to demonstrate such a mistake or who has been indolent. 19. The Defendant also claims that the securities have been realized. The Court must consider the potential harm. Reinstating the case after a long wait, especially when securities have reportedly been realized, would significantly harm the Defendant. 20. The overriding objective under Sections 1A and 1B of the Civil Procedure Act obliges the Court to facilitate expeditious and proportionate resolution of disputes. Article 159(2)(d) of the Constitution does not oust procedural requirements nor does it aid indolent litigants. 21. Given all circumstances, I am not convinced that valid reasons have been provided to justify the use of this Court’s discretion in favor of the Applicant. 22. On other prayers in respect of the request for a stay of execution, leave to amend the plaint, and leave to prosecute the suit are consequential upon reinstatement. Since reinstatement is not justified, those prayers must also fail. 23. Regarding the change of advocates, permission is typically granted. However, this request is moot due to the dismissal of the substantive reliefs. 24. Accordingly, the Notice of Motion dated 28th March 2023 is devoid of merit and is hereby dismissed with costs to the Defendant. It is so ordered. RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT NAIROBI THIS 12TH DAY OF MARCH 2026. P.M. MULWA JUDGE In the presence of: Mr. Wati for Plaintiff/Applicant Ms. Musau for Defendant/Respondent Court Assistant: Carlos https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3451/eng@2026-03-12 3

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