[2020] KEHC 8253 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

CIVIL SUIT NO. 630 OF 2011

THE HERITAGE INSURANCE LTD.........................................PLAINTIFF

VERSUS

MARY JOY KINDERGARTEN & PRIMARY SCHOOL......DEFENDANT

R U L I N G

1. On the 28th May 2019, this matter was listed before the court for the business of the parties canvassing an application by Notice of Motion dated 15/01/2019. That date had been notified to the plaintiff on the 19/3/2019 by way of a hearing notice dated the same day. The service was evidenced by an Affidavit sworn by one JOSEPH WAMVEYA NGUGI. On account of due service and in the absence of the plaintiff as respondent to the application, the court allowed the application with the consequence that the suit was dismissed for want of prosecution with costs.

2. A reading of the court file show that the matter was last in court on 30/10/2017 for hearing when the same was adjourned at the instance of the plaintiff counsel who said that he had spoken to the defendants counsel and had agreed that the matter be adjourned and a new date taken in the new term beginning January 2018. The whole of 2018 passed without any steps being taken and therefore the defendant filed the application dated 15/1/2019 on 17/01/2019.

3. The record of the file further show that after dismissal, the defendant filed a bill of costs dated 11/6/2019 on the 12/6/2019 and served same upon the plaintiffs on the 18/6/2019. It must have been the said bill of costs which jolted the plaintiffs from their inertia and the current application was filed on the 27/06/2019.

4. The explanation given for failure to attend court on the date set was that counsel was outside Kenya and detailed another to hold his brief but the counsel so detailed started before another court for mention and the matter was dealt with in his absence. It is also asserted in the Affidavit in support that the court clerk was indeed in court and spoke to the counsel for the defendant to have the matter placed aside. On the basis of the cause pleaded, a position was taken and urged that it is just to reinstate the suit because if the dismissal is left to stand then the plaintiff will be compelled to settle the claims by persons not covered by the policy issued to the defendant by the plaintiff.

5. On being served the Defendant opposed the application by an Affidavit sworn by counsel in conduct. The gist of the Affidavit was that the plaintiff has not been keen to prosecute the suit and that even though the order was made in the absence of the plaintiff; the grounds of opposition were taken into account in reaching the decision to dismiss the suit for want of prosecution.

6. I have had the benefit of considering the application on the basis of the materials filed, the submissions offered and the record of the court. From the evaluation of the facts, I note that since being filed no proactive step has been taken to prosecute the suit and therefore on the 7/9/2015 there were directors that the suit be prosecuted within 6 months. It should be pointed out that on that day the court was scheduled to hear an application by the defendant seeking an order that orders of stay be issued against the execution of the decree issued in Kilungu SRMC No 27 of 2011. To this court that order and the previous ones of its kind have given to the plaintiff the comfort and lack of impetus to move this suit forward. Looked at deeply it is the kind of an order this court now consider to have been improperly given without regard to the rights of the plaintiff in that suit to be heard. It is one of those decisions that ought not to have been given even if the parties expressed it as consent.

7. As said before the matter was fixed for hearing on 3/10/2017 when the same was adjourned after the plaintiffs’ counsel informed the court that counsel had spoken and agreed to adjourn. On that day nothing was said to court why the plaintiff could not proceed with the case. From that day no steps were taken by the plaintiff until the defendant moved the court with the application to dismissed.

8. The application leading to the orders now sought to be set aside came in after some 15 months of lack of any steps by the plaintiff since that matter was last in court on 3rd October 2017. The first impression one gets is that the application was well grounded and propelled by the constitutional dictate that justice shall not be delayed.

9. The current application show that the only reason I should set aside the dismissal is so that the grounds of opposition dated 7th march 2019 may be ventilated. The explanation given in those grounds was that it was difficult to get a date for hearing of the suit due to full diary. That allegation is made without any evidence as to the attempts made to get a date. I must say that such are the kind of opposition that ought to been seen through and not permitted to blur the court’s vision in focusing on the true facts. The true fact, and this can be taken judicial notice of is that since 2016, it has always been possible to get dates at the registry and in court within a period of four months and below. That can be verified by just randomly picking just twenty files from the registry. That is a gain the judges here have strived to achieve with a lot of sacrifice and should not be lost to the whim of blanket assertion that a party was unable to get a date for a period extending beyond twelve months. I consider such assertion to be untrue and thus incapable of being the foundation of exercise of the courts discretion in favour of a party making it.

10. As designed, the discretion to set aside is designed to meet ends of justice by seeking to avoid hardships and to remedy shortcomings resulting from mistakes or excusable blunders but not to aid a litigant evidently out to obstruct and delay justice by inaction, dexterity or just dilatoriness. In this matter, I can repeat that in making an assertion that is not founded after the suit has been in court for almost a decade, is to this court evidence of evasion and failure to meet the party’s obligation to court.

11. In deed a blunder or mistake by counsel should not be the only reason to shut out a party from the seat of justice, but such blunder should one that is excusable for being inadvertent or inevitable. The circumstances revealed here are neither excusable nor inevitable.

12. I am not hesitant therefore to find and hold that the grounds of opposition being grounded on untrue position, no justice would be served by setting aside.

13. The other ground advanced for the plea to set aside is that the plaintiff stands to suffer great prejudice unless the suit is reinstated because the dismissal exposes it to lose a pedestal to challenge the judgment obligations arising from persons who were never covered by the policy the plaintiff issued to the defendant. To this court such a prejudice is neither real nor probable. The position taken by the plaintiff in this suit is that the bus was involved in an accident while ferrying persons other than the defendant’s student. That to me is a defence capable of being mounted at the stage of a declaratory suit to enforce a judgment by third parties. I therefore hold the opinion that to let the suit stand dismissed will not deprive the plaintiff a defence seeking to question if a policy had been issued to cover the third parties suing.

14. The second reason I consider the plaintiff not to remain remediless by the dismissal is that the legal profession in Kenya has now developed and prescribed compulsory indemnity insurance for legal practitioners for the sake of protecting the client and advocate alike, in the event of a misstep by counsel.

15. For all the foregoing reasons, I find no merit in the application dated 24. 6. 2019, to lack merit and I therefore dismiss the same with costs to the defendant.

Dated, signed and delivered this 10th day of February 2020

P.J.O. OTIENO

JUDGE