Automated Summary
Key Facts
The case involves an application by plaintiffs (Duncan Owuor Shakali, Deborah Awuor, Busia Cottage Tourist Hotel, and Gabriel Owuor Junior) seeking to set aside a 2025 dismissal of their suit against NCBA Bank Kenya Limited and Auckland Agencies Auctioneers for want of prosecution. The suit, originally filed in 1996 at Kakamega High Court, was transferred through multiple courts over decades without progressing to a full hearing. The plaintiffs argued they attended the 15 January 2025 hearing (both in person and virtually) and were unaware of the dismissal, while the defendant contested these claims. The court found the plaintiffs had repeatedly failed to attend hearings, granted no valid reason for the 4-month delay in filing the application, and concluded their inaction over 29 years constituted abuse of the judicial process. The application was dismissed with costs.
Issues
- The plaintiffs sought reinstatement of the suit dismissed in 2025, invoking constitutional rights to fair hearing (Article 50) and substantive justice (Article 159), as well as the 'oxygen principle' in the Civil Procedure Act. The court emphasized that these principles cannot excuse 29 years of unexplained delays and procedural neglect, citing John Nahashon Mwangi vs. Kenya Finance Bank Limited [2015] eKLR as authority.
- The application to set aside the 2025 dismissal was filed four months after the event, with no explanation for the delay. The court noted that the plaintiffs and their Advocate claimed awareness of the hearing date but failed to act promptly. The judge concluded this delay, coupled with the plaintiffs' long history of inaction, justified dismissing the application with costs.
- The court was asked to determine if orders dismissing the suit for want of prosecution (15th January 2025) should be set aside. Grounds included the plaintiffs' non-attendance, the Advocate's virtual appearance, and alleged procedural errors in the hearing. Legal principles from Ivita vs. Kyumbu [1984] KLR 441 and Pithon Waweru Maina vs. Thuka Mugiria [1983] eKLR were cited to guide the exercise of judicial discretion.
Holdings
The court dismissed the application to set aside the orders dismissing the suit for want of prosecution. The plaintiffs' repeated failures to attend court hearings and amend their plaint over 29 years, coupled with their alleged virtual presence without engagement, led the court to conclude there was no proper basis for reinstating the suit. The application for reinstatement was denied with costs, emphasizing that constitutional principles (Articles 50 and 159) and the 'oxygen rule' were not intended to enable abuse of the court process.
Remedies
The application to set aside the dismissal of the suit was dismissed with costs. It is so ordered.
Legal Principles
- The court applied principles of natural justice, emphasizing that justice must be done for both sides and considering factors like delay, inexcusability, and prejudice to the other party. These principles were highlighted in the case of Ivita vs. Kyumbu [1984] KLR 441.
- The court referenced the 'oxygen principle' under the Civil Procedure Act (sections 1, 1A, and 3A) and constitutional Articles 50 and 159, which emphasize the right to be heard and substantive justice. These principles were discussed in the context of reinstating dismissed suits.
Precedent Name
- Pithon Waweru Maina vs. Thuka Mugiria
- John Nahashon Mwangi vs. Kenya Finance Bank Limited (in Liquidation)
- Co-operative Bank of Kenya Limited vs. Patrick Kangethe Njuguna & 5 others
- Ivita vs. Kyumbu
Cited Statute
- Constitution of Kenya
- Civil Procedure Act (Cap 21)
Judge Name
William Musyoka
Passage Text
- The impression that one gets, from the record, is that the plaintiffs were never serious with prosecution of the matter, after it was transferred to the Busia High Court. It was in the Busia High Court between 21st June 2022 and 15th January 2025, and within that period the plaintiffs were never ready to proceed with the matter.
- In Ivita vs. Kyumbu [1984] KLR 441 (Chesoni, J), the considerations were said to include whether the delay is prolonged and inexcusable; whether justice can be done despite the delay; justice is justice for both sides, and so the positions of both sides must be considered; whether the other side would be prejudiced, by justice not being done by the prolonged delay; and the reasons given for the delay.
- Given the history of this matter... I am not persuaded that there exists a proper case for exercise of discretion... the plaintiffs have been dilly-dallying all over. A party cannot have its cake and eat it.