Clearwater Industries Limited v First Community Bank Limited

Applicant’s case 5. The core ground is that the suit was dismissed on 12.11.2024 for nonattendance whereas the plaintiff had no knowledge of the date as it was not recorded in the firm’s diary due to the negligence of a former associate, Mr. Osodo. 6. The plaintiff’s counsel deposed that the former associate was terminated on 20.1.2025. That he conducted a routine review of the CTS portal in March 2025 following the departure of the former associate when he discovered that the suit had been dismissed for want of prosecution due to nonattendance. 7. The plaintiff argued that the mistake of an advocate should not be visited upon the litigant. 8. The plaintiff also argued that it was entitled to a notice to show cause before the suit was dismissed. 9. On the principles for setting aside an order, the plaintiff relied on Shanzu Investment Ltd v the Commissioner of lands, Civil Appeal No. 100 of 1993, Wanjiku Kamau v Tabitha N. Kamau & 3 others [2014] eKLR, Patel v East Africa Cargo Handling Services Limited [1974] EA 75, Lochab Bros. Limited v Peter Kaluma T/A Lumumba Mumma & Kaluma Advocates & 2 others [2013] eKLR. 10. On advocates mistake the plaintiff relied on Philip Chemwolo & Another v Augustine Kubende [1982-88] KAR 103. It also relied on Associated Warehouse Co. Ltd & others v Trust Bank Ltd HCCC No.1266 of 1999 (unreported) on the requirement for service before dismissal. 11. On the principles for reinstatement, the plaintiff relied on John Nahashon Mwangi v Kenya Finance Bank Limited (in Liquidation) [2015] KEHC 6789 (KLR) and Ivita v Kyumbu [1984] KLR 441. Responses 12. The defendant pointed out that the suit was initiated through a plaint dated 9.5.2017. It deposed that the hearing of the matter was numerously adjourned at the instance of the plaintiff on 12.5.2021, 14.7.2021, 28.10.2021. 13. The defendant argued that the law does not require that a party be heard but that a party is given a reasonable opportunity to be heard. It contended that the plaintiff had been given several opportunities to prosecute its case but failed. 14. The defendant highlighted the plaintiff’s conduct during the trial, showing its disinterest in the suit. It pointed out that when the matter eventually proceeded for hearing on 6.7.2022, 5 years after the suit was filed, the plaintiff sought to delay the matter by objecting to the third party’s cross examination of its witness. This was despite the third party being an active party. 15. The defendant attributed the delay in the matter to the plaintiff’s conduct which then was followed by the transfer of the judge who had heard the plaintiff’s witness. It faulted the plaintiff for seeking to have the matter heard de novo. 16. The defendant dismissed the claim that the plaintiff did not attend the hearing because of the former associate’s negligence. It asserted that the plaintiff’s counsel admitted that his firm conducts routine reviews of the CTS portal and that it behoved them to do so and to take note of the hearing date. 17. The defendant also pointed out that the plaintiff’s counsel failed to explain the failure to follow up the matter from the time that the former associate was terminated on 20.1.2025 and when it filed this application. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7085/eng@2026-04-23 2

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18. The defendant argued that a tenet of the right to fair hearing is to have a trial begin and conclude without unreasonable delay. It also argued that it stands to suffer immense prejudice of the orders sought are granted. 19. The defendant submitted that the plaintiff is undeserving of the orders sought and that the application ought to be dismissed with costs. 20. On the guiding principles for reinstatement of a suit, the defendant relied on LS & another (Suing Through Next Friend and Guardian BS) v Wasuna & 2 others (Civil Suit 124 of 2009) [2023] KEHC 21357 (KLR) and Tabuche v Tinga 2 others (Civil Appeal E003 of 2022) 2024 KECA 551 (KLR) (24 May 2024) (Judgment). 21. The third party/ 2nd respondent filed grounds of opposition dated 20.5.2025. The grounds are that the application is defective and legally untenable. That it has been filed after unreasonable and unexplainable delay. That the applicant has not met the threshold in Tabuche v Tinga 2 others [supra]. That equity does not aid the indolent as the plaintiff has spectacularly failed to explain the delay taken by the applicant from the date the suit was dismissed till filing the instant application. That the applicant has not laid legal and or factual basis to warrant this Court to exercise its discretion in its favour. Analysis and Determination 22. The issues for determination are whether the applicant has met the threshold for review of the order of 12.11.2024 and reinstatement of its suit. 23. Order 12 Rule 7 of the Civil Procedure Rules provides that “ Where under this Order judgment has been entered or the suit has been dismissed, the court, on application, may set aside or vary the judgment or order upon such terms as may be just.” 24. The court may review or set aside its own orders under section 80 of the Civil Procedure Act and order 45 rule 1of the Civil Procedure Rules for a sufficient reason, among others. 25. The court’s discretion to set aside its orders ought to be exercised reasonably not capriciously based on principles in accordance with the unique circumstances of the case. 26. As regards the threshold for reinstatement of a suit that has been dismissed for want of prosecution, the court in Ivita v Kyumbu [1984] KLR 441, observed as follows: “ The test is whether the delay is prolonged and inexcusable, and if it is, can justice be done despite such delay. Justice is justice to both the Plaintiff and the Defendant, so both parties to the suit must be considered and the position of the judge too, because it is no easy task for the documents and, or witnesses may be wanting and evidence is weak due to the disappearance of human memory resulting from lapse of time. The Defendant must however, satisfy the court that he will be prejudiced by the delay or even that the Plaintiff will be prejudiced. He must show that justice will not be done in the case due to the prolonged delay on the part of the Plaintiff before the court will exercise its discretion in his favour and dismiss the action for want of prosecution. Thus, even if the delay is prolonged, if the court is satisfied with the Plaintiff’s excuse for the delay, the action will not be dismissed but it will be ordered that it be set down for hearing at the earliest available time”. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7085/eng@2026-04-23 3

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Is the delay prolonged and is it excusable? 27. The suit was dismissed on 12.11.2024. The application for reinstatement is dated 7.4.2025. This is about 4 months. The delay is prolonged. 28. The plaintiff attributed the non-attendance to the fact that it had no knowledge of the hearing date as it was not recorded in the firm’s diary due to the negligence of a former associate, Mr. Osodo. 29. However, the plaintiff failed to explain the failure to follow up the matter from the time that the former associate was terminated on 20.1.2025 and when it filed this application, 7.4.2025. 30. The plaintiff’s counsel indicated that he conducted a routine review of the CTS portal in March 2025 following the departure of the former associate when he discovered that the suit had been dismissed for want of prosecution due to non-attendance. 31. This shows that the plaintiff’s counsel had access to the information about the case and the explanation that it was the associate who failed to diarize the hearing date is not a plausible explanation for the delay. Why did the plaintiff’s counsel only review the CTS portal in March, about two months after the former associate had been terminated? 32. A litigant should not be punished for their counsel’s mistake but the litigant also has a duty to follow up the progress of its case. 33. The plaintiff is required to give a plausible explanation for the delay and the entire period of the delay ought to be explained. It has not done this. 34. Therefore, the court finds that the delay in filing this application is inexcusable. Have the respondents shown that they would be prejudiced by the delay? 35. The respondents complained of the plaintiff’s previous conduct in the matter which caused the delay in the prosecution and the conclusion of the matter. 36. They also asserted that they would be prejudiced if the suit was reinstated because of the delay. They relied on the principle that a fair trial required that a trial begins and concludes without unreasonable delay. 37. Justice is to all parties not only the plaintiff. Such delay as in this case which, from the record appears to stem from the plaintiff’s calculated maneuvers to delay its own case, is not only prejudicial to the law but also to the other parties in the suit. 38. The respondents have satisfied the court that they have been and would be prejudiced by the delay and reinstatement of the suit, respectively. 39. Therefore, the court takes the view that, it is not in the interests of justice of all the parties to reinstate the suit. Let the spoils lie where they fall because the conduct of the plaintiff is prejudicial to the parties and reinstating the suit would be rewarding a party who deliberately temporized the case. Disposal 40. Accordingly, the application dated 7.4.2025 is dismissed. Given the outcome, each party shall bear own costs of the application. DATED, SIGNED AND DELIVERED AT NAIROBI THROUGH MICROSOFT TEAMS ONLINE APPLICATION THIS 23RD DAY OF APRIL, 2026 https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7085/eng@2026-04-23 4

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F. GIKONYO M JUDGE In the presence of: Ms. Okomo for Owino for Applicant/Plaintiff Nyanchora for 1st defendant Nyanyuki for 3rd Party CA – Ivan/Aggrey https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7085/eng@2026-04-23 5

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