[2022] KEHC 16482 (KLR)

Intime Freight & Cargo Services Company Ltd v Inkingo Farms Ltd & 2 others (Civil Case 161 of 2016) [2022] KEHC 16482 (KLR) (Commercial and Tax) (8 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16482 (KLR)

Republic of Kenya

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

Commercial and Tax

Civil Case 161 of 2016

WA Okwany, J

December 8, 2022

Between

Intime Freight & Cargo Services Company Ltd

Plaintiff

and

Inkingo Farms Ltd

1st Defendant

Gulf Energy Ltd

2nd Defendant

Citibank Ltd

3rd Defendant

Ruling

1. The plaintiff instituted this suit seeking judgment against the defendant for the following orders:-a.Kshs 95,498,586. 30 against the 1st and 2nd defendant in agency fees plus VATb.Kshs 24381 against the 2nd and 3rd defendant being a refund for Kifwa Annual subscription fee for the year 2014, license renewal application fee and monarch custom bond CBII application feec.General damages for loss of business against the 2nd defendantd.Costs of this suite.Interest on (a), (b), (c) and (d) above at court rates.

2. On October 8, 2018 the suit was dismissed for want of prosecution and the plaintiff filed this application for reinstatement of the suit. The defendants raised a preliminary objection to the application on the basis that the plaintiffs advocate filed the notice of change after entry of judgment. The court found the preliminary objection to be merited and consequently dismissed the application. By consent, the parties agreed to have the application heard on merit

3. The application dated September 30, 2019 is brought under Order 17 rule 2(1) and Order 51 rule 1 of the Civil Procedure Rules.

4. The applicant seeks the following orders;-1. Spent2. Spent3. That this matter be reinstated and all consequential orders thereof be set aside and/or vacated and the plaintiff be allowed to prosecute the suit on merit4. That pending the hearing and determination of this application in terms of prayer 3 above, an order of temporary stay of execution do issue.5. That the costs of this application be provided for.

5. The application is supported by the affidavit sworn by the plaintiff’s director Lawrence Thiongo and is based on the following grounds;-a.That the honourable court dismissed this matter for want of prosecution on October 8, 2018. b.That the said dismissal was irregular and the plaintiff was never served with the notice to show cause.c.That prior to the dismissal of the matter, the matter came up in court on several dates for which the plaintiff did not appear as it was not aware that the matter was coming up on those dates.d.That the plaintiff stands to suffer irreparable damage if the orders sought are not grantede.That it is only fair and in the wider interest of justice that the orders sought be grantedf.That the defendants do not stand to suffer any prejudice, as they are the cause of the irregularities herein.

6. The 3rd defendant opposed the application through the replying affidavit sworn by its Senior Branch Operations Officer Ms Sarah Kaminchia who states that the court dismissed the suit on October 8, 2018 for want of prosecution as the plaintiff was indolent in prosecuting the matter. She avers that plaintiff took almost three years to prosecute the case and that the delay was inordinate and had not been explained.

7. The 2nd defendant in opposed the application through the replying affidavit sworn by Paul Limoh who states that the court granted leave to the 2nd defendant to serve the plaintiff by registered post as the plaintiff’s advocate on record was deceased. He states that the 2nd defendant effected the service but the plaintiff failed to attend court and a notice to show cause was issued that culminated in dismissal of the suit and on October 8, 2018.

8. The application was canvassed by written submissions which I have considered.

9. The principles for reinstatement of a suit were laid down in the case of Ivita v Kyumbu [1984] KLR 441, where the court stated:-“The test is whether the delay is prolonged and inexcusable, and, if it is, can justice be done despite such delay. Justice is justice to both the plaintiff and defendant; so both parties to the suit must be considered and the position of the judge too, because it is no easy task for the documents, and, or witnesses may be missing and evidence is weak due to the disappearance of human memory resulting from lapse of time. The defendant must however satisfy the court that it will be prejudiced by the delay or even that the plaintiff will be prejudiced. He must show that justice will not be done in the case due to the prolonged delay on the part of the plaintiff before the court will exercise its discretion in his favour and dismiss the action for want of prosecution. Thus, even if delay is prolonged if the court is satisfied with the plaintiff's excuse for the delay, the action will not be dismissed, but it will be ordered that it be set down for hearing at the earliest available time.

10. Reinstatement of a suit is at the discretion of the court upon the consideration of certain factors. In this present suit, the matter came up for mention on June 22, 2018 when the court was informed of the challenge in effecting service on the plaintiff’s counsel who was deceased. The court issued directions that the plaintiff be served personally by registered post. The matter then came before the court again on July 27, 2018 and since the plaintiff was absent, it was listed for Notice to show cause. The court then dismissed the plaintiff’s application on October 8, 2018 for want of prosecution.

11. I have perused the record and I note that there is evidence that the plaintiff was properly served. I also note that the application was filed almost a year after the suit was dismissed for want of prosecution. It is the duty of all parties to ensure that matters are concluded without unnecessary delay. In this regard, I find that delay for close to a year was not adequately explained but considering the fact that it is not disputed that the plaintiffs lawyer denied during the hearing of the case, this court may exercise its discretion to allow the application.

12. On whether the defendants would suffer prejudice, the defendants aver that there would be challenges in availing witnesses. The plaintiff submits it would suffer more prejudice as the amount it claims is quite substantial. In my considered view is that in the circumstances of this case no prejudice would befall the defendants if the suit is reinstated. I find that the plaintiff stands to be greatly prejudiced if driven from the seat of justice without being accorded a hearing, should his application be dismissed.

13. In the premises I find merit in the application and allow it as follows:-1. The orders of the court dated October 8, 2018 are hereby set aside and the plaintiffs suit is reinstated for hearing and determination on merit on condition that the matter be fixed for hearing within 60 days from the date of this ruling.2. The plaintiff will meet the costs of this application and thrown away costs.

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 8TH DAY OF DECEMBER, 2022. W. A. OKWANYJUDGEIn the presence of: -Mr. Ndungu for plaintiff.Mr. Evayo for 2nd defendant.Mr. Kahura for 3rd defendantCourt Assistant- Sylvia