Al Wakil Transference & Trading Company Ltd v SOS Kinderdoff International (Civil Suit 2277 of 1998) [2026] KEHC 12328 (KLR) (Commercial and Tax) (31 July 2026) (Ruling)

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **COMMERCIAL AND TAX DIVISION** **CIVIL SUIT NO. 2277 OF 1998** **AL WAKIL TRANSFERENCE & GENERAL** **TRADING COMPANY LIMITED………….PLAINTIFF/RESPONDENT** **VERSUS** **SOS KINDERDOFF INTERNATIONAL….DEFENDANT/APPLICANT** **RULING** 1. This ruling concerns the Notice of Motion application dated 14th May 2026, brought pursuant to Articles 50 and 159(2) of the Constitution of Kenya, Section 1A, 1B and 3A of the Civil Procedure Act, Order 12 rule 2 and Order 51 rule 1 of the Civil Procedure Rules 2010. The Applicant seeks, *inter alia*, a stay of further proceedings in this cause, issue of an order reopening the hearing of the Defendant’s/applicant’s case, and the costs be in the cause. 2. The application is grounded in the facts on the face of the record and is supported by the annexed affidavits of Dr. Fred N. Ojiambo, SC, MBS, the advocate in conduct of the matter. He deposes that on 13th May 2026, when the matter was slated for defence hearing, he was unfortunately held up before the Court of Appeal for the hearing of Civil Application No. E022 of 2024. He avers that, at the time he concluded with the Court of Appeal, this court had already issued orders that the Defence case herein was marked as closed and that the parties were to appear on 15th June 2026 to confirm the filing of written submissions. 3. Learned counsel avers that the Applicant has always been keen to defend the suit, and that it is in the interests of justice that the Defendant be heard on its defence to enable the court to render substantial justice. He further avers that there is no delay in bringing the instant application, that the Defendant has a reasonable prospect of success at trial, and that no prejudice will be suffered by the Plaintiff. He avers that the Plaintiff has also contributed to the numerous adjournments. 4. The Plaintiff opposes the application through the Replying Affidavit of Ismael Abdillahi Siyad, sworn on 11th June 2026. He deposed that the application is incompetent, frivolous and an abuse of the court process; that the matter has been in court for over 27 years, and thus the Defendant/applicant had an opportunity to put its house in order. He avers that the Defendant has always been responsible for the adjournment of the defence hearing, thereby frustrating the proceedings of this matter. 5. He further avers that the hearing date of 13th May 2026 was fixed on 10th February 2026 in court, in the presence of both counsel; that the Applicant’s conduct throughout the history of this suit reveals a consistent pattern of delay in defending the matter, more specifically the non-compliance with the court’s directions of 5th May 2025, 20th May 2025 and 9th July 2025. Despite the service of the hearing notice by the Court of Appeal, counsel for the Defendant failed to seek an adjournment in time before the hearing date, a clear indication of disinterest in defending the matter. 6. He further avers that the Applicant has failed to provide a sufficient or credible explanation for its non-appearance. He contends that the Respondent would suffer great prejudice if the orders sought are granted and proceedings are opened at this stage. He avers that the overriding objective under Sections 1A, 1B and 3A of the Civil Procedure Act is to facilitate the just, expeditious, proportionate and affordable resolution of the dispute. 7. The application was canvassed orally in court. **Analysis and determination** 1. The sole issue falling for determination is whether the Applicant has established sufficient cause to warrant the reopening of the defence case after it was marked as closed by the court. 2. The power to reopen proceedings or to set aside ex parte orders is discretionary. However, such discretion must be exercised judiciously, on sound legal principles, and with due regard for the competing interests of the parties and the need for the expeditious disposal of litigation. 3. In **Shah v Mbogo & Another [1967] EA 116**, Harris J. stated that the court's discretion to set aside an ex parte order is intended: ***“...to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake or error but is not designed to assist a person who has deliberately sought, whether by evasion or otherwise, to obstruct or delay the course of justice.*”** 1. Similarly, in **Patel v EA Cargo Handling Services Ltd [1974] 1 EA 75 (CAM)** the Court of Appeal aptly held thus: ***“The main concern of the court is to do justice to the parties, and the court will not impose conditions on itself to fetter the wide discretion given it by the rules.”*** 1. Equally, Article 50(1) of the Constitution guarantees every litigant a right to a fair hearing, but this must be balanced with the constitutional mandate under Article 159(2)(b) that justice not be delayed. Sections 1A and 1B of the Civil Procedure Act also require courts to ensure swift, just, and affordable civil dispute resolution. Courts have consistently emphasized that parties have a responsibility to show interest in and follow up their cases, even when represented by counsel. (See **Habo Agencies Limited vs Wilfres Odhiambo Musingo (2015) KECA 987 (KLR)*.*** 2. The explanation advanced by the Applicant for failing to attend court on 13th May 2026 is that learned Senior Counsel was engaged before the Court of Appeal in another matter. While courts readily acknowledge that counsel may occasionally find themselves appearing before different courts on the same day, such circumstance does not, without more, constitute sufficient cause. Counsel bears the responsibility of taking timely steps to notify the court of any anticipated conflict, seek an adjournment where necessary, or arrange for another advocate to hold brief. 3. The court records attest to repeated adjournments and the defendant's non-compliance with prior directives. The court, in exercising its discretion, is entitled to consider the applicant's overall conduct throughout the proceedings, rather than focusing solely on the events of a single hearing date. In my view, the Applicant has demonstrated indolence; consequently, the court will dismiss their claim, even if they possess a valid case. 4. Furthermore, it is now settled practice that litigation must be concluded promptly, and parties who habitually delay proceedings should not be permitted to repeatedly invoke the court's discretion to the detriment of diligent litigants. This case dates back to 1998 and has been before the court for over twenty-seven years. The court bears a corresponding duty to ensure the prompt resolution of litigation within a reasonable period. 5. Reopening the defence case at this stage would inevitably cause further delays, particularly given that the matter has already exceeded acceptable timelines. Such delays would be incompatible with the overriding objectives of the Civil Procedure Act and with Article 159(2)(b) of the Constitution. The court is of the considered view that this matter has been unduly prolonged, and that the prejudice the Respondent would suffer if the application is granted outweighs the Applicant’s right to be heard. 6. Consequently, I find the application dated 14th May 2026 is devoid of merit and is dismissed with costs to the Respondent**.** 7. The orders made on 13th May 2026 closing the Defendant's case shall remain in force. The parties shall proceed with the filing of submissions in accordance with the directions made thereof. **RULING** delivered virtually, dated and signed at **NAIROBI** This **31st** day of **July** 2026. **PETER M. MULWA** **JUDGE** **In the presence of:** *Ms. Nyaga h/b for Ms. Asli* for Plaintiff/Respondent *Ms. Miima h/b for Dr. Ojiambo, SC* for Defendant/Applicant Court Assistant*: Lispa*