[2022] KEHC 17049 (KLR)

Ideal Locations Ltd v Nakumatt Holdings Limited (Under New Administration) & 3 others (Civil Suit 69 of 2018) [2022] KEHC 17049 (KLR) (13 May 2022) (Ruling)

Neutral citation: [2022] KEHC 17049 (KLR)

Republic of Kenya

In the High Court at Mombasa

Civil Suit 69 of 2018

MN Mwangi, J

May 13, 2022

Between

Ideal Locations Ltd

Plaintiff

and

Nakumatt Holdings Limited (Under New Administration)

1st Defendant

Peter Obondo Kahi

2nd Defendant

PKF Consulting Limited

3rd Defendant

Atul Shah

4th Defendant

Ruling

1. The1st defendant’s notice of motion dated December 15, 2020 is brought under the provisions of sections 1A, 1B, 3A, 3B, 5, 63(e) of the Civil Procedure Act, order 10 rule 11, order 51 rule 1 of the Civil Procedure Rules, 2010, articles 2, 3, 10, 12, 19, 20, 21, 22, 23, 24, 25, 27, 28, 39, 40, 43, 47, 48, 50, 60, 66, 73, 75, 159, 162, 165 0f the Constitution of Kenya, section 13 of Environment and Land Court Act, 2011, Laws of Kenya and all other enabling provisions of the law. The 1st defendant prays that-i.Spent;ii.That pending the interpartes hearing of this application:a.There be stay of execution of the order of this Honourable Court given on December 14, 2020 dismissing the 1st defendant's Notice of Motion application dated January 16, 2020;b.There be stay of any further/alternate proceedings.iii.That the orders subject of prayers/item Nos 2 hereinabove do persist until the hearing and determination of this application;iv.That the Honourable Court be pleased to set aside ex debito justiciae, the orders given herein on December 14, 2020, dismissing the 1st defendant's Notice of Motion application dated January 16, 2020;v.That the Honourable Court be pleased to reinstate in their (sic) entirety the 1st defendant's Notice of Motion application dated January 16, 2020;vi.That consequently the Honourable Court be pleased to grant the defendant leave to lodge her submissions in respect of the Notice of Motion application dated January 16, 2020; andvii.That the costs of this application be provided for.

2. The application is premised on the grounds on the face of it and the affidavit sworn on December 15, 2020 by Daniel Ngonze, the 1st defendant’s Advocate, Mr Ngonze deposed that through the Notice of Motion dated January 16, 2020, the 1st defendant sought the dismissal of the instant suit for reasons that the plaintiff had not sought leave of the insolvency Court (Nairobi High Court Insolvency Cause No 10 of 2017; Re: Nakumatt Holdings Limited) or consent of the Administrator before lodging the instant suit. He further deposed that soon thereafter, there was an outbreak of the Covid -19 pandemic, which significantly affected Court operations, coupled with attrition of the entire workforce in his law firm, thereby making it extremely difficult to comply with the Court’s directions.

3. He averred that when the application dated January 16, 2020 came up for hearing on December 14, 2020, he explained his predicament to the Court, including the impossibility of lodging their submissions on the said morning, owing to network challenges in the Court filling system, an anomaly that was duly acknowledged by the Court. Nevertheless, the Court proceeded to dismiss the said Motion for want of prosecution, even without a formal application in the regard.

4. He stated that in the interest of justice, fairness, equity, constitutionalism, principles of rule of law and natural justice, his application ought to be allowed as prayed.

5. The plaintiff filed grounds of opposition based on the following grounds-i.That the instant application is frivolous, vexatious and lacks in legal basis and as such the same ought to be dismissed in limine;ii.That the said application is merely intended to delay the Court process and to curtail the plaintiff's claim before this Honourable Court;iii.That this Honourable Court has already heard and rendered a decision on the said issues being raised in the application as such the same is res judicata;iv.That the 1st defendant did not appeal the said decision neither is it seeking a review before this Court. The application filed is an appeal disguised as an application for stay and setting aside of the orders of this court and the Court is functus officio;v.That the application offends order 10 rule 11 and order 22 rule 22 of the Civil Procedure Rules, 2010 which the defendant (sic) seems to rely upon;vi.That the application before this Honourable Court is an abuse of the Court process; andvii.That it is in the interest of justice that the application be dismissed and for this Honourable Court to proceed with the hearing of the main suit.

6. The Court directed parties to file submissions in support of their respective cases. The 1st defendant’s submissions were filed on April 16, 2021 by the firm of Ngonze & Ngonze Advocates while the plaintiff’s submissions were filed on May 18, 2021 by the firm of Ahmednasir Abdikadir & Co Advocates.

Submissions 7. In his written submissions, Mr Ngonze cited Sections 1A, 1B, 5, 7 and 25 of the Civil Procedure Act, order 10 rule 11, order 21 rules 1, 3 and 4, order 42 rule 1, section 5 of the Oaths and Statutory Declarations Act and section 119 of the Evidence Act. He relied on the finding in Shah v Mbogo & another (1967) EA 116, where the Court of Appeal held that the main concern of the Court is to do justice to the parties, and that the Court will not impose conditions on itself to fetter the wide discretion given to it by the rules.

8. He also cited the finding in KMM v JIL [2016] eKLR, where the Court held that for a matter to be res judicata, the matter in issue must be similar to that which was previously in dispute between the same parties and that the same was determined on merit by a Court of competent jurisdiction.

9. On the functus officio principle, Mr Ngonze cited the Court of Appeal finding in Telkom Kenya Limited v John Ochanda (suing on his own behalf and on behalf of 966 former employees of Telkom Kenya Limited) [2014] eKLR, where it was held that a final decision of a Court cannot be reopened and that the only exceptions are where there has been a slip in drawing it up and where there has been an error in exercising the manifest intention of the Court.

10. Ms Gachomba, learned Counsel for the plaintiff submitted that the instant application for stay and setting aside of orders is similar to application dated January 16, 2020 that was dismissed and that the 1st defendant cannot be allowed to reframe the same issues already determined by the Court. She relied on the finding in ET v Attorney General & another [2012] eKLR, where it was held that a Court must always be vigilant to guard litigants evading the doctrine of res judicata by introducing new causes of action so as to seek the same remedy before the Court.

11. She further submitted that this Court could not sit on appeal of its own decision as the 1st defendant has an opportunity to ventilate its grievance before the Court of Appeal.

Analysis And Determination 12. On perusal of this Court’s proceedings of December 14, 2020 and written submissions together with the authorities cited therein by both parties and from my understanding of the same, the sole issue for determination is whether this Court should set aside its orders of December 14, 2020 and reinstate the application dated January 16, 2020 for hearing and determination.

13. Order 12 rule 7 of the Civil Procedure Rulesprovides as follows-“Where under this Order judgment has been entered or the suit has been dismissed, the court, on application, may set aside or vary the judgment or order upon such terms as may be just.”

14. In an application of this nature where the 1st defendant seeks reinstatement of the application dated January 16, 2020, it is appealing to the discretion of the Court which must in turn caution itself to exercise its discretion in a judicious manner so as not to occasion an injustice to the plaintiff. This position was fortified in the case of Richard Ncharpi Leiyagu v Independent Electoral Boundaries Commission & 2 others [2013] eKLR, where the Court of Appeal stated thus-“We agree with those noble principles which go further to establish that the court's discretion to set aside an exparte judgment or order for that matter, is intended to avoid injustice or hardship resulting from an accident, inadvertence or inexcusable mistake or error but not to assist a person who deliberately seeks to obstruct or delay the course of justice. We have considered the reasons that were offered by the appellant regarding their failure to attend court on the June 10, 2013 with anxious minds. We have asked ourselves whether failure to attend court on June 10, 2013, constituted an excusable mistake, an error of judgment regarding counsel's failure to diarize the date properly or was it meant to deliberately delay the cause of justice.”

15. Further, Section 3A of the Civil Procedure Act provides for the inherent powers of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the Court process. It provides as follows-“Nothing in this Act shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.”

16. In Shah v Mbogo & another (supra), it was held that-“The discretion to set aside an exparte judgment is intended to be exercised to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake or error but it is not designed to assist a person who has deliberately sought whether by evasion or otherwise to obstruct or delay the cause of justice”.

17. In Paxton v Allsopp [1971] 3 All ER 370 as adopted in Ivita v Kyumbu [1984] KLR 441 Salmon J, expressed that in cases of dismissal for want of prosecution, if he (ie plaintiff) is personally to blame for the delay, no difficulty arises. There can be no injustice in his bearing the consequences for his own fault.

18. In this case, it is noteworthy that the plaintiff did not file a replying affidavit to controvert the averments made in the 1st defendant’s supporting affidavit. Consequently, the grounds of opposition filed by the plaintiff herein only respond to the issues of law raised in the 1st defendant’s application. The failure to file a replying affidavit in contention of a fact amounts to an admission of facts on the said application. See the case of Kennedy Otieno Odiyo & 12 others v Kenya Electricity Generating Company Limited [2010] eKLR, wherein the Court held-“The respondents only filed grounds of opposition to the application reproduced elsewhere in this ruling. Grounds of opposition addresses (sic) only issues of law and no more. The grounds of opposition aforesaid are basically general averments and in no way respond to the issues raised by the applicant in its supporting affidavit. Thus what was deponed to was not countered nor rebutted by the respondents. It must be taken to be true. In the absence of the replying affidavit rebutting the averments in the applicant’s supporting affidavit, means that the respondents have no claim against the applicant…..”

19. From the proceedings in this case, it is apparent that on the September 24, 2020, the plaintiff’s representative fixed for hearing on November 10, 2020, the application dated January 16, 2020. However, the Court did not sit on November 10, 2020 and a hearing date was again fixed for the December 14, 2020 by the plaintiff’s representative. There is no evidence on record that a hearing notice for the hearing scheduled for the November 10, 2021 was served upon the 1st defendant.

20. The 1st defendant’s Counsel averred that the inactivity was due to the crippling effect of the Covid-19 pandemic and that on the day it wanted to file its written submissions, the Court filing system at the Mombasa Law Courts was down. Due to the explanation given by the 1st defendant’s Counsel on the crippling effect that Covid-19 had on his law firm, I am persuaded that I should exercise my discretion in favour of the 1st defendant.

21. The issue raised by the plaintiff’s counsel on the application herein being res judicata does not arise as the other application dated January 16, 2020 was not heard on merits.

22. I give the benefit of the doubt to the 1st defendant and hereby reinstate the Application dated January 16, 2020. I also deem the 1st defendant’s submissions dated December 14, 2014 as having been duly filed and regularly on record. Costs of the instant application shall be in the cause.

DATED, SIGNED AND DELIVERED AT MOMBASA ON THIS 13TH DAY OF MAY, 2022. THE RULING HAS BEEN DELIVERED THROUGH TEAMS ONLINE PLATFORM.NJOKI MWANGIJUDGEIn the presence of:Ms Kangehi h/b for Mr. Ngonze for the 1st defendant/applicantMr. D. Kimani for the 2nd, 3rd and 4th defendants/respondentsMs Khadija for the plaintiff.Mr. Oliver Musundi – Court Assistant