[2017] KEHC 83 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

COMMERCIAL & ADMIRALTY DIVISION

CIVIL SUIT NO. 391 OF 2006

JITEGEMEE TRUST LTD.....................................PLAINTIFF

VERSUS

VINTAGE MANAGEMENT LIMITED....1ST DEFENDANT

SAMUEL KIIRU..........................................2ND DEFENDANT

JANE WAMBUI...........................................3RD DEFENDANT

VIVIAN WANJA..........................................4TH DEFENDANT

ONTULILI INVESTMENTS LTD............5TH DEFENDANT

RULING

1. To be decided in this Ruling is the Notice of Motion dated 7th November 2016 for the following Prayers:-

1. THAT the Plaintiff/Respondent do furnish the Defendants with the particulars sought vide the request for particulars dated 18th July 2016.

2. THAT the Plaintiff/Respondent do bear the costs hereof.

2. In the Affidavit sworn on 7th November 2016 in support of the Motion, the 2nd Defendant explains that the request for particulars dated 18th July 2016 was served on the Plaintiff’s Advocates on 10th August 2016. He further explains that the Plaintiff’s Advocates have refused to supply those particulars and that refusal is unwarranted.

3. The 2nd Defendant is advised by his Advocates that the particulars sought are critical to the Defendants right to defend the big Claim against them and to prepare for Trial. It is also averred that the Court has an obligation to ensure that they are informed of the case they are to meet at trial so as to avoid surprises.

4. In an Affidavit sworn on 2nd February 2017 by Ben R.N. Mbai (a Director of the Plaintiff) the refusal to furnish the Particulars is explained. That the request is made very late in the Proceedings as Pleadings closed soon after the 26th October 2006 when the Defendants filed their Statement of Defence. Further, that the suit is now part-heard as the Plaintiff presented its case on 3rd July 2014 before Honorable Justice Gikonyo.

5. The Plaintiff takes the position that the Applicants have never been ready and willing to defend the suit and cites the following as examples of tactics employed by them to delay the hearing of the suit;-

a) Failing to attend Court for hearing without any justification whatsoever. One of such failure to attend Court was on 22nd March, 2011.

b) Adjourning the suit on numerous occasions on various grounds such as on 26th May, 2011 on grounds that Counsel for the Applicant had no instructions to proceed, and on 15th March, 2012 on grounds that the Applicants’ witness were not available.

c) Abandoning proceedings on 3rd July, 2014 when the Honourable Justice Gikonyo declined to grant the Applicants’ Counsel an adjournment. In declining the said application for adjournment, the Honourable Judge noted that the matter had been adjourned on numerous occasions at the behest of the Applicants while during all those times the Plaintiff was ready to proceeding with the hearing of the matter.

d) Subsequent to the foregoing, filing High Court Petition No. 485 of 2014 claiming that the court’s failure to grant an adjournment was an infringement of the Applicant’s right to fair hearing. Since the filing of this Petition, the Applicants have made no effort to prosecute the same”.

Paragraph 4 of the Replying Affidavit of Ben R.N Mbai.

6. The Statement of Defence herein was filed on 25th October 2006 by the firm of Njagi Wanjeru & Co. Advocates then representing the Defendants.

7. Pursuant to Leave granted by Court on 27th September 2007, the Plaint was amended to enjoin the 5th Defendant. That Amended Pleading was filed on 29th October 2007. The 5th Defendant, again through the firm of Njagi Wanjeru & Co., filed its Defence on 18th February 2008.

8. On 6th August, 2010, the Plaintiff filed its list of documents. A Supplementary Bundle of Documents was to follow on 18th March 2011. This was accompanied by a Witness Statement of Ben R.N Mbai.

9. The Court Record shows that on 21st March, 2011, the Defendants were granted 21 days to file and serve their Witness Statements and hearing fixed for 26th May 2011.

10. Fast forward to 3rd July 2014, a witness being Mr. Mbai for the Plaintiff was partly heard in his evidence in Chief.

11. More than 2 years later (on 22nd July 2016) Counsel for the Defendants requested for 21 days to file their documents. The Application now before Court was to follow on 9th November 2016.

12. That short narration of events herein demonstrates the lateness in which the request for Particulars comes. It was brought over 9 years after Pleadings closed and 6 years after the Plaintiffs had filed its Supplementary list of Documents and the witness Statement. This delay is considerable.

13. There is a proposition, which this Court accepts, that if a party is guilty of inexcusable delay in filing his application for Particulars, and if it is brought shortly before the trial date or after trial has began, then the Application is for dismissal (see Ochieng J. in TALOCK SINGH NADHRA & 3 OTHERS VS. ROBIN CAHILL & 8 OTHERS[2006] eKLR where he approved the decision in ASTROVLANIS COMPANIA NAVIERA SA VS. LINARD [1972] 2 ALL ER 647.

14. What is the explanation for this substantial delay?

15. This is explained by the 2nd Defendant in his Supplementary Affidavit sworn on 10th February 2017 and filed herein on 10th February 2017. He depones as follows in paragraphs 3 and 4 of his Affidavit;-

“3. In paragraph 2 of my supporting affidavit, the defendants owned up to the delay that is apparent on the face of the record and I reiterate that the said delay was occasioned by the serious differences the defendants had with their former advocates who had imposed a lien over several original documents that constitute the List/Bundle of documents dated 29. 7.2016.

4. Once again the said delay is regretted and the defendants apologize to this Honourable Court as well as the Plaintiff and its advocates”.

16. The Defendants further assert that the Plaintiff can no longer complain of delay after allowing the Defendants to file their list and Bundle of Documents on 22nd July 2016.

17. What is to be made of this explanation? The defendants’ current Advocates being Ongoto & Co. Advocates came on record through a Notice of change of Advocates filed on 3rd July, 2014. Prior to this the 1st to 4th Defendants had been represented by the firm of Njagi Wanjeru & Co. Advocates from at least 25th October 2006 and the 5th Defendant from 18th February 2008. The said firm had, therefore, represented the 1st to 4th Defendant for 8 years and the 5thDefendants for 6 years before the change of Advocates. While the Defendants say that the Delay was occasioned by serious differences between them and their former Advocates, they do not complain about the manner in which the said Advocates had conducted their case while they were still on Record.

18. There is no explanation given why the Defendants’ previous Advocates did not file the request in the many years when they had the conduct of the Defence or between 18th March 2011 when the Plaintiff filed a Supplementary Bundle of Documents and witness Statement and when the Advocates exited. The period of delay during the term of the Firm of Njagi Wanjeru & Co. is not explained.

19. There is then the period from 3rd July 2014 when the firm of Ongoto & Co. Advocates had come on record. The said firm took another 2 years before making the request for Particulars. Is this delay explained at all? I am afraid not. Neither the Advocates nor the Defendants account for this delay. The lateness of 2 years must be viewed in the context that the overall delay in making the request was from 18th March 2011 when the Plaintiff filed its last batch of documents.

20. Where no plausible or any explanation is made for a delay, then it must be held to inexcusable. The attempt to blame part of the delay on purported differences between Client and Advocate is not plausible as this Court has demonstrated that no explanation is made for the delay that occurred after the firm of Ongoto & Co. Advocates came on record. The delay is therefore inexcusable and will have to defeat the Application.

21. And let this be added. It is true that, on 22nd July 2016, the Defendant requested for 21 days to file their Documents and notwithstanding that it would be coming over 9 years after close of Pleadings, Counsel for the Plaintiff did not object. In doing so Counsel for the Plaintiff sought Leave to file further Documents if need arose after the filling of the Defendants’ Documents. It is now suggested by the Defendants that the Plaintiff cannot put up the argument for delay having conceded to the late filing of the Defendants Documents. This Court does not agree.

22. The Plaintiff’s concession does not in any way cure the inordinate and unexplained delay on the part of the Defendants. This is because the Request was for Particulars of the Amended Plaint dated 20th October 2007 that had been filed about 9 years before it was made. It would however have made a difference if the Plaintiff had filed further Documents in reaction to the Defendants’ Documents and the request for Particulars would be to matters revealed in the additional Documents. This is not the case herein.

23. The inordinate and inexcusable delay defeats the Motion of 7th November, 2016. It is hereby dismissed with Costs.

Dated, Signed and Delivered in Court at Nairobi this 31stday ofMay, 2017.

F. TUIYOTT

JUDGE

PRESENT;

Ongoto for Defendant/applicant

Miller h/b Gatonye for Defendant/Respondent

Alex - Court clerk