[2022] KEHC 11292 (KLR)

Daniels Outlets Limited v Yato Tools Limited (Miscellaneous Civil Application E1100 of 2020) [2022] KEHC 11292 (KLR) (Commercial and Tax) (5 May 2022) (Ruling)

Neutral citation: [2022] KEHC 11292 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Commercial and Tax

Miscellaneous Civil Application E1100 of 2020

WA Okwany, J

May 5, 2022

Between

Daniels Outlets Limited

Applicant

and

Yato Tools Limited

Respondent

Ruling

1. This ruling resolves two applications dated September 25, 2020 and July 13, 2021.

2. The application dated September 25, 2020 seeks orders to transfer NBI CMCC No 1225 Of 2013 Commercial, Yato Tools (Shangai) Limited vs Daniel Outlets Limited to the High Court for hearing and determination.

3. The application is supported by the affidavit of the applicant’s director Mr Daniel Muriithi Waweru and is based on the grounds that: -1. That the Chief Magistrate’s Court has deemed that it lacks pecuniary jurisdiction over the applicant’s counter claim for loss of profits, loss of business and damages of over Kshs 150,000,000/- and it is imperative that the suit be determined before this court, which has the requisite pecuniary jurisdiction, and as the matter revolves around one contract between the parties herein.

4. The respondent opposed the application through the replying affidavit of its Export Manager Ms Vivian Gu who states that the expected award will not exceed the lower court’s jurisdiction. She further states that there is nothing to transfer to this court as the amendment of the statement of defence and counterclaim was not done in compliance with the law and the rules governing amendment of pleadings.

5. Through the second application dated July 13, 2021 the plaintiff/applicant seeks the following orders: -a)That this application be dismissed for want of prosecution by the applicant/respondent;b)That applicant’s/respondents counterclaim which is part of the amended statement of defence dated June 19, 2019 in Milimani MCCC 1225 of 2019 Yato Tools (Shangai) Limited v Daniels Outlets Limited which outs the jurisdiction of court lower court be expunged from the courts record; andc)That costs be provided for and assessed at Kshs 50,000. 00.

6. The application is supported by the affidavit of Ms Judy Wanjiru Njoroge and is based on the grounds that: -1. That the main application herein was only filed after the lower court ordered that if the same is not filed the respondent was at liberty to prosecute their main claim as considerable amount had passed and the said application hadn’t been filed, hence delaying the expeditious disposal of the main claim;2. That considerable amount of time has since passed and the applicant/respondent hasn’t adhered to the first order issued by this honourable court on the November 5, 2020 to file and serve submissions to the respondent/applicant;3. That the applicant/respondent no longer makes any appearance before this honourable court, a clear indication of its loss of interest in prosecuting their application;4. That the continued presence of the main application before this court without its prosecution is highly prejudicial to the respondent/applicant;5. That the main application is clearly an abuse of the court process and is only meant to delay the expeditious conclusion of the matter at the lower court.

7. The defendant opposed the application through the grounds of opposition dated July 21, 2021 wherein it states that: -1. That the said application is meant to defeat the overriding objectives of the Civil Procedure Act.2. That the application is frivolous as it seeks to eject the applicant/respondent from the table of justice.3. That the trial court lacks jurisdiction which the applicant/respondent’s notice of motion dated 25th of September 2020 which application the defendant/applicant maliciously seeks to dismiss.4. That any delay if any in enlisting the matter is not attributed to the applicant as the matter was scheduled for hearing but was not listed as the same was disrupted by the prevailing covid-19 pandemic that this honourable court takes judicial notice of.5. That the applicant/respondent has listed the matter for hearing.6. That it is now well settled principle in law that a matter can only be dismissed for want of prosecution if the matter has stayed untouched for a period of 12monthsandonly if the honourable court is convinced that the delay was unwarranted and that it occasioned miscarriage of justice. See Civil No 2 of2017 Invesco Assurance Company Limited Vs Oyange Barrack (2008) eKLR attached herewith.7. That the respondent/applicant was at liberty to prosecute its case regardless of the existence of the applicant/respondent’s counter claim.8. That the notice of motion dated July 13, 2021 and supported by the affidavit of Judy Wanjiku Njoroge an Advocate of the High Court of Kenya sworn on the same date are premature, fatally defective and bad at law.9. That the applicant/respondent nevertheless apologizes for any delay and is desirous of expediting the hearing of its case if this court gives it another chance at hearing, which we pray that this court does.11. That the applicant/respondent will be prejudiced and suffer irreparable harm if the respondent/applicant’s notice of motion dated July 13, 2021 is allowed.

8. Parties canvassed the application by way of written submissions which I have considered. The main issues for determination are whether CMCC No 1225 of 2013 Commercial, Yato Tools (Shangai) Limited vs Daniel Outlets Limited should be transferred to this court and whether the application to transfer the suit should be dismissed for want of prosecution.

9. Section 18 of the Civil Procedure Act empowers the High court to withdraw any suit or other proceedings pending in other courts subordinate to it. The applicants contend that the counterclaim exceeds the pecuniary jurisdiction of the court. I have perused the copy of defence and counterclaim attached to the application and I note that the defendant seeks judgment to the tune of more than 150,000,000 which exceeds the pecuniary jurisdiction of the Chief magistrate court.

10. In Samuel Kamau Macharia vs Kenya Commercial Bank & 2 Others, Civil Application No 2 of 2011, the Supreme Court held, inter alia: -“A court’s jurisdiction flows from either the constitution or legislation or both. Thus, a court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. We agree with counsel for the first and second respondents in his submission that the issue as to whether a court of law has jurisdiction to entertain a matter before it, is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the court cannot entertain any proceedings.”

11. I find that the applicant has established that it is prudent to have the suit heard and determined by a court of competent jurisdiction. I am of the view that the transfer of the suit from the lower court to this court will not prejudice any of the parties.

12. On the issue of whether the first application should be dismissed for want of prosecution, the plaintiff argued that the defendant had no interest in prosecuting its application as a considerable amount of time had lapsed since it was filed.

13. On its part, the defendant argued that it was not responsible for the delay in listing the matter for hearing. The defendant attributed the delay to the advent of the Covid 19 pandemic.

14. Order 17 Rule 2(1) of the Civil Procedure Rules, provides as follows over dismissal of suits for want of prosecution: -“In any suit in which no application has been made or step taken by either party for one year, the court may give notice in writing to the parties to show cause why the suit should not be dismissed, and if cause is not shown to its satisfaction, may dismiss the suit.”

15. Order 17 Rule 2(3) of the Civil Procedure Rules, states thus: -“Any party to the suit may apply for its dismissal as provided in sub-rule 1”

16. In Argan Wekesa Okumu vs Dima College Limited & 2 others [2015] eKLR the court considered the principles for dismissal of a suit for want of prosecution and stated as follows: -“The principles governing applications for dismissal for want of prosecution are well settled and have been established by a long line of authorities. The applicant must show that the delay complained of is inordinate, that the inordinate delay is inexcusable and that the defendant is likely to be prejudiced by such delay. As such the 3rd defendant in this case must meet the burden of proof in seeking the dismissal of the plaintiff’s case for want of prosecution see the case of Ivita vs Kyumbu (1984) KLR 441. Further to this, the decision of whether or not to dismiss a suit is discretionary and this court must exercise such discretion judiciously. Additionally, each case must be decided on its own facts keeping in mind that a court should strive to sustain a suit where possible rather than prematurely terminating the same.”

17. In the present case, I find that the delay in prosecuting the application is not inordinate. Courts have held the position that they should be slow in dismissing a suit where it is satisfied that the suit can proceed without further delay.

18. In conclusion, and having already found that the first application to transfer the lower court case to this court is merited, I find that the application to dismiss the said application for want of prosecution has technically been overtaken by events. Consequently, I find that the application dated July 13, 2021 is merited and I therefore allow it as prayed. The application dated September 25, 2020 is however not merited and I hereby dismiss it. The costs of both applications shall abide the outcome of the main suit. I direct that the matter be listed for pre-trial before this court within 30 days from the date of this ruling.

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 5TH DAY OF MAY 2022. W. A. OKWANYJUDGEIn the presence of: -Mr. Otieno for Omwayo for Applicant.Ms Njoroge for Respondent.Court Assistant- Sylvia