Did Kenya’s First Community Bank actually want to go ahead with its case? Otherwise, why had its litigation been so delayed, asked the court. The parties before Judge James Aaron Makau were divided in their answer. Those who were to be sued by the bank for a great deal of money said the delays were unconscionable and the case should be thrown out. But the bank said that though there had been delays it still was eager to have the matter heard – and it blamed the court for the delays. The judge was unimpressed: it was the advocate involved, not the court, that was to blame, he said.

Judge James Aaron Makau:

  1. … (It is) clear once the advocate was granted leave to serve the defendants by way of substituted service … the plaintiff never bothered to move the court to set the matter down for hearing.  In actual fact, there no single document that has been exhibited to demonstrate the plaintiff has shown interest to prosecute this matter since it was filed.  The delay in taking any steps to have the matter heard are inordinate, prolonged and unexplained to the satisfaction of the court.  I find that the plaintiff has not demonstrated that it is keen, eager and ready to prosecute this case as it has done nothing after filing and serving the summons to enter appearance.
  2. It is contended that the failure to set the suit down for hearing has been due to congestion in court’s diary.  It may be true, the court has many cases but in the instant case, no effort has been made to seek a hearing date and was denied.  In the commercial division it is possible in some courts to get a hearing date within a period of 2 months to 6 months.  I find had the plaintiff sought a hearing date since 2016 to date a hearing date would have been given.  It is the plaintiff who has chosen for whatever reasons to sit on the matter and cannot be heard to blame the congestion of the court diary as an excuse.  Courts are keen these days to have matters heard as fast as possible and no court would be a party to unjustified delay in prosecution of matters before it.
  3. I am satisfied the plaintiff has not shown good cause for failure to set down the matter down for hearing and is wrong in hiding behind its failure to prepare the suit for trial.  This is a suit in which the plaintiff has a lot at stake if the same is dismissed for want of prosecution.  The fault squarely falls at the feet of the Advocate who has not made the right and fast steps to set the matter down for hearing.  I am alive to the fact that if the suit is dismissed for want of prosecution, it is the Advocates’ client who would suffer damage though once a party hands over his matter to an advocate he should not go to slumber but should be checking the Advocate the progress of its suit from time to time.  He is to blame himself for putting all his trust on an Advocate, (and failing) to visit him from time to time to find out how far he has dealt with his matter.

High Court, Commercial and Tax Division, Kenya

First Community Bank v Mahson’s

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  • Newsletter, Judicial Institute for African (Jifa), 14 March 2019