[2016] KEHC 2580 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

CIVIL SUIT NO. 255 OF 1994

AMCON BUILDERS LTD ………………......……PLAINTIFF

VERSUS

VINTAGE INVESTMENT LTD

SHANKLA T/A SHANKLA & PARTNERS.......DEFENDANTS

R U L I N G

1. By a Notice of Motion dated 11. 05. 2016 the defendant through Miyare & Co. Advocates sought two substantive orders from the court namely:-

(a) (spent)

(b) The court be pleased to order the reconstruction of court file as per the annextures hereto collectively marked “RB”.

(c) That the Honourable Court be pleased to dismiss the Plaintiff’s suit for want of prosecution.

2. The gist of the application as evident from the grounds on the face of it and the facts deponed to in the affidavit of REGINE BUTT is that the matter was last in court about five years ago (on 4th May, year not disclosed) when it was adjourned at the instance of the plaintiff whereafter the court file disappeared and is yet to be traced.

3. Due to time lapse the Defendant applicant contends that the prospects of a fair hearing are now diminished on account of death and senility on account of the advanced ages of its directors and immigration of possible witnesses yet there continues to persist an order of prohibition registered against the title since 9th June 1995.

4. On those grounds the 1st defendant prays that to meet the overriding objective of the court, this suit ought to be dismissed for want of prosecution because it has become apparent that the plaintiff has lost interest in the matter.

5. The application was supported by the 2nd Defendant who filed an affidavit sworn by one USHWIN KHANNA who avails additional pleadings and documents to assist the court reconstruct the file. He concedes that the file needs to be reconstructed and adds that the pendency of the suit is preducial to the 2nd defendant whose directors have permanently relocated from the country and are too old to recollect the facts relevant to this case and that the consultancy firm subject of the suit has since been closed.

6. In opposition to the application the plaintiff filed an affidavit sworn by one GOVIND LALJI PATEL, a director of the plaintiff. The affidavit gives dates the matter has been to court for either mention or hearing resting with 4/5/2011. That is the year 2002 the parties referred the matter for resolution by an arbitrator and a final award was made in May 2003 in the sum of Kshs.7,271,886. 50. It is additionally deponed that the current advocates came on record on 26/10/2012 but since that time the file has not been traced and that the Advocate now acting for the 1st defendant have not served upon the plaintiffs advocate any notice of change. He concludes by saying that the matter is essentially concluded and only awaiting the adoption of the arbitral award for which reason the file should be reconstructed.

7. That is the summary of facts as placed before the court by all the sides in this litigation. From those facts, one thing is not in dispute, it is the fact that since 2011, the court file in this matter has gone missing and is yet to be traced. That common position by the parties obliges this court to have the file reconstructed. There being no dispute whether or not reconstruction is desirable, I direct and order that court be reconstructed using the documents availed and filed with the affidavits by the three parties.

8. The next question is whether or not the suit should be dismissed. It is true and conceded by all sides that the file has been unavailable at the registry immediately after the appearance of 4/5/2011. In those circumstance can the plaintiff or indeed any of the parties be faulted for failure to move the file forward? I do not think so. In any event, the court file in which the proceedings ought to have been undertakdn has just been reconstructed now. To me to dismiss it would be to own up that the court misplaced the parties file, agrees that it needs reconstruction and proceed on the same breath to say that for that misplacement, the parties shall not be heard.

9. No justice would have been served if that were to happen. Coupled with the assertion that the matter was referred to arbitration and an award was made, this file can just be dismissed as yet if that be the position, and I note that the deposition is not contested, then I hold the view that substantial justice demand that chance be given to the parties to have that award adopted or considered for adoption.

10. In order that this file does not lapse into another lull and for active case management, I direct that the plaintiff files an appropriate application within 45 days from today. If no application shall have been filed within the said period, that is to say on or before the 30/11/2016 this suit shall stand dismissed for want of prosecution. There shall be no orders as to costs.

Dated and Delivered at Mombasa this 14th day of October 2016.

P.J.O. OTIENO

JUDGE

14/10/2016