The Registered Trustees of Ebenezer Gospel Church v Shadrack Ndolo & 1 other v Shadrack Ndolo & 1 other

RULING (1) Before me is the Notice of Motion dated 26/7/2024 brought under sections 1A, 3A of the Civil Procedure Act, Order 50 rule 1, order 16 rule 5 of Civil Procedure Rules . (2) It seeks orders that the Plaintiffs suit be dismissed for want of prosecution with costs to the applicant. It is supported by the affidavit of Shadrack Ndolo Mutua and the grounds on its face. (3) The applicant’s position is that the suit was filed on 20/12/2017 and at the time of filing this application the matter had last been in court on 29/5/2024. That the plaintiff had not taken any step to prosecute the suit for over 6 years. (4) On 4/3/2025, the firm of Kamolo & Associates filed a notice to withdraw the suit against the 2nd defendant following submissions earlier that the n2d defendant had passed on, and was not substituted. (5) The application is opposed by David Mulwa Muli who depones that he is one of the registered trustees of the plaintiff and opposes the application for being bad in law, incompetent, and an abuse of the court process. (6) He blamed their previous counsel for not appraising them of the progress of the matter; that the matter was referred to mediation but took a bit of time there; that the delay was caused by mistake of counsel. (7) Parties filed written submissions. The Judiciary of Kenya Doc IDENTITY: 809391266765481556724231633 Tracking Number:OOUF3P2026 2/9

page 2 of 13

(8) For the applicant the submissions set out the background to the application The Judiciary of Kenya Doc IDENTITY: 809391266765481556724231633 Tracking Number:OOUF3P2026 3/9

page 3 of 13

– that the plaintiff filed the suit against him and the deceased 2nd defendant seeking a declaration that the defendants were not trustees of the plaintiff – the plaint was dated 19/12/2017. The defendant/applicant together with codefendant filed their joint statement of defence dated 8/1/2018. That the matter was set for hearing on 23/10/2023 last - when it was taken out by the plaintiff and no further hearing date was fixed. (9) The applicant relies on Ivita v Kyumbu [1975] KEHC 4 (KLR) & Nzoia S u g a r C o m p a n y L i m i t e d v We s t K e n y a S u g a r L i m i t e d [2020] KEHC 976 (KLR) on the criteria to be applied in considering whether or not a suit ought to be dismissed or not. In Ivita Vs Kyumbu the court stated … In all these cases and in the East African Court of Appeal case of Mukisa Biscuit Manufacturing Company Limited v West End Distributors Limited [1969] EA 696, this court and the Court of Appeal relied and followed the English case of Fitzpatrick v Batger and Allen v McAlpine ibid. Post independence English cases have proved to be of great assistance and persuasive authority to this court. In the Fitzpatrick case Lord Denning MR said at page 658: “…….it is the duty of the plaintiff’s adviser to get on with the case. Public policy demands that the business of the courts should be conducted with expedition. Just consider the times here. The accident was on December 13, 1961……. It is impossible to have a fair trial after so long a time. The delay is far beyond anything, which we can excuse. This action has gone to sleep for nearly two years. It should now be dismissed for want of prosecution.” … Order XVI rule 5 is intended to put the plaintiff and his advocate on guard so that they do not put their case on one side as long as they please without fear of consequences. One may say courts are harsh by striking out the plaintiff’s suit, but as Lord Denning MR put it in Allen v Sir Alfred McAlpine & Sons Ltd at pp 546 & 547 and I quote the MR: “The delay of justice is a denial of justice ……To no one will we deny or delay right or justice’. All through the years men have protested at the law’s delay and counted it as a grievous wrong, hard to bear. Shakespeare ranks it among the whips and scorns of time (Hamlet, Act 3, Sc 1). Dickens tells how it exhausts The Judiciary of Kenya Doc IDENTITY: 809391266765481556724231633 Tracking Number:OOUF3P2026 4/9

page 4 of 13

finances, patience, courage, hope (Bleak House, C1). To put right this wrong, we will in this Court do all in our power to enforce expedition: and, if need be, we will strike out actions when there has been excessive delay. This is a stern measure; but it is within the inherent jurisdiction of the court, and the rules of court expressly permit it. It is the only effective sanction that they contain.” (10) It is submitted that for the period the matter has been in court the plaintiff has changed advocates three times but had never prosecuted the matter . Further that the plaintiff cannot be heard to blame his advocate without showing the tangible steps taken to follow up with the Advocate – this was the holding in Rupa Savings & Credit Cooperative Society v Violet Shidogo [2022] KEHC 2028 (KLR) where the matter had been in court for 9 years, the court held. It is trite that mistakes of counsel should not be visited on his/her client. However, that as it may be to exercise discretion under this domain it is the duty of the aggrieved party to place before court prima facie evidence to tilt the scale of discretion squarely on this guiding principle. Am of the considered view that the applicant did not discharge that burden of proof concerning this remedy on extension of time. In Harod Miller and Ocean Breeze Hotel Limited –v- Carlene Miller(2016) JMCA App1 the court observed inter alia that “If it is counsel’s fault that results in litigants? failures to comply with rules and timelines, it will generally be open to those litigants to pursue appropriate reliefs in the appropriate fora, as against those attorneys. Such fault or failures on the part of counsel, cannot, other than in the rarest of circumstances, properly be utilised as a good excuse for the failure to comply with requisite court timelines and schedules. If it were otherwise, one could simply avoid complying with the applicable timelines and schedules, by blaming one’s neglect to do so, on one’s attorney(s)-at- law.” (11) The Judiciary of Kenya And on Thani Limited Mzee Khamisi v Parklands Doc IDENTITY: 809391266765481556724231633 Tracking Number:OOUF3P2026 Motors 5/9

page 5 of 13

[2018] KEELRC 798 (KLR) where the matter had been in court for 9 years, the court held As provided in Article 159(2)(b) and (d) justice must not be delayed and justice must be done to all, irrespective of status. The applicant does not have a superior right than that of the respondent whom he dragged to court and has kept in court over the past nine years. Litigation must come to an end and reasonable accommodation must be accorded to all parties. (12) For the plaintiff/respondent it is submitted that the delay to prosecute has not been deliberate and relies on Thathini Development Co. Ltd v Mombas a Wate r & Sewerag e Compan y another & [2018] KEELC 2775 (KLR) where the court relied on Ivita vs Kyumbu it is submitted that the defendant must show that even if there has been alleged delay – that he will be prejudiced. That if the court is satisfied with the Plaintiffs explanation for the delay the court will not dismiss. (13) It is submitted that the matter was sent for mediation but the former advocate on record was not appraising the plaintiffs of the position – that the mistake of counsel should not be visited on the clients see Edney Adaka Ismail v Equity Bank Limited [2014] KEHC 5932 (KLR) where the court stated Further, there is no allegation presented that the Defendant stands to suffer any prejudice that cannot be compensated by way of costs if the application is allowed. All that has been alleged is that the Plaintiff had defaulted on its obligation to repay the loan facility and should therefore not be entitled to the orders he seeks. In my view, the Court has to take cognizance of the effect of allowing the Plaintiff's application. If the Plaintiff's dismissed application is reinstated for hearing and thereafter the same is found to be unmerited, there would be no prejudice caused on the part of the Defendant. This must however be weighed against the consequences of shutting out The Judiciary of Kenya Doc IDENTITY: 809391266765481556724231633 Tracking Number:OOUF3P2026 6/9

page 6 of 13

the Plaintiff from the hearing of his application and hence losing his vehicles held as collateral for the loan facility by the Bank. The Court must take into account the principle of proportionality and see The Judiciary of Kenya Doc IDENTITY: 809391266765481556724231633 Tracking Number:OOUF3P2026 7/9

page 7 of 13

where the scales of justice lie. The law is now clear that the business of the Court, so far as possible, is to do justice between the parties and not to render nugatory that ultimate end of justice. The Court, in exercising its discretion, should always opt for the lower rather than the higher risk of injustice. See Suleiman -vs- Ambose resort Limited [2004] 2 KLR 589. (14) I have carefully considered the application, the submissions and the record. The issue is whether the application is merited. (15) It is not disputed by the plaintiff that the suit has delayed – since 2017. The plaintiff’s explanation is to blame his advocate. However, as was clearly held in Rupa Savings & Credit Coop Society above – that is not enough. The matter belongs to the client not the advocate and the plaintiff had the duty to demonstrate what action it had taken to follow up the matter. No such evidence has been placed before this court. This was stated in Edney Adaka Ismail where the court cited the Savings and Loans Limited -vsSusan Wanjiru Muritu Nairobi (Milimani) HCCS No.397 of 2002 Kimaru, J expressed himself as follows:“Whereas it would constitute a valid excuse for the Defendant to claim that she had been let down by her former Advocates failure to attend Court on the date the application was fixed for hearing, it is trite that a Case belongs to a litigant and not to her Advocate. A litigant has a duty to pursue the prosecution of his or her Case. The Court cannot set aside dismissal of a suit on the sole ground of a mistake by Counsel of the litigant on account of such Advocate's failure to attend Court. It is the duty of the litigant to constantly check with her advocate the progress of her case. In the present Case, it is apparent that if the Defendant had been a diligent litigant, she would have been aware of the dismissal of her previous application for want of prosecution soon The Judiciary of Kenya Doc IDENTITY: 809391266765481556724231633 Tracking Number:OOUF3P2026 8/9

page 8 of 13

after the said dismissal. For the Defendant to be prompted to action by the Plaintiff's determination to execute the decree issued The Judiciary of Kenya Doc IDENTITY: 809391266765481556724231633 Tracking Number:OOUF3P2026 9/9

page 9 of 13

in its favour, is an indictment of the Defendant. She had been indolent and taking into account her past conduct in the prosecution of the application to set aside the default judgment that was dismissed by the Court, it would be a travesty of justice for the Court to exercise its discretion in favour of such a litigant. (Emphasis added) (16) For instance, when the matter was referred for mediation – it was not about the advocates participation but about the parties hence the applicant cannot blame the advocate for the delay in the mediation progress. (17) The mediation document dated 10/9/2024 shows that the plaintiff was represented. The mediation collapsed then – and the plaintiff did not take any action. (18) The laxity by the plaintiffs is clearly demonstrated in the manner they have dealt with the death of the 2nd defendant. The record shows that the 2nd defendant died in 2019, and counsel for the plaintiff then sought and was allowed to withdraw the suit against the deceased on 13/2/2019, and the same was allowed by Hon C Kariuki, J. (19) The Plaintiffs after getting that order never substituted the 2 nd defendant. And the matter has been pending over this issue since. The – matter was taken over Hon Ong’ undi J (as she ten was) and fixed the hearing on 25/11/2020. Before the hearing date the applicant filed an application dated 6/7/2020.This was eventually withdrawn without being prosecuted. (20) The matter came before Hon Dulu J on 25/11/2020. Parties agreed to go for mediation. The next time the matter came for mention was 30/1/2023 when the court was told that mediation had collapsed. (21) I took over the matter on 29/3/2023 and fixed for hearing on 19/6/2023 when matter taken out. A new date was taken for 2/10/2023 – the plaintiffs once again offered to settle the matter. The court granted Court Annexed The Judiciary of Kenya Doc IDENTITY: 809391266765481556724231633 Tracking Number:OOUF3P2026 10/ 9

page 10 of 13

Mediation (CAM). The matter collapsed again on account of plaintiff’s noncooperation. The Judiciary of Kenya Doc IDENTITY: 809391266765481556724231633 Tracking Number:OOUF3P2026 11/ 9

page 11 of 13

(22) It is my view that the record speaks for itself. (23) The plaintiff has never been ready to proceed with hearing of the matter and has requested numerous times to settle out of court only for the said mediation /negotiation to collapse on the plaintiffs’ account. (24) I find no willingness to prosecute this matter. Following the holdings in Ivita vs Kyumbu & Rupa Savings herein above , I find that the applicant has not demonstrated any willingness to prosecute; secondly the applicant has not demonstrated any effort to follow-up with their previous advocates. The record does not support the plaintiff’s plea that given another opportunity he will prosecute. (25) In the circumstances I find that the application is merited and the same is allowed. The suit is dismissed with costs to the 1st defendant. RULING Dated, signed and delivered virtually this 21st April 2026 Mumbua T Matheka Judge CA Chrispol Shadrack Ndolo Mutua present/applicant N/A for respondent Page 5 of 6RULING HCCC No 3 of 2017 SIGNED BY/FOR: The Judiciary of Kenya Doc IDENTITY: 809391266765481556724231633 Tracking Number:OOUF3P2026 12/ 9

page 12 of 13

LADY JUSTICE MATHEKA, TERESIA MUMBUA ★ TH E JUDICIAR Y O F KENY A ★ LADY JUSTICE MATHEKA, TERESIA MUMBUA Makueni High Court High Court Div Date: 2026-04-21 22:48:51 The Judiciary of Kenya Doc IDENTITY: 809391266765481556724231633 Tracking Number:OOUF3P2026 13/ 9

page 13 of 13