[2022] KEHC 10512 (KLR)

Kbenways Company Limited v Family Bank Kenya Limited (Civil Suit 9 of 2017) [2022] KEHC 10512 (KLR) (17 June 2022) (Ruling)

Neutral citation: [2022] KEHC 10512 (KLR)

Republic of Kenya

In the High Court at Kericho

Civil Suit 9 of 2017

AN Ongeri, J

June 17, 2022

Between

Kbenways Company Limited

Plaintiff

and

Family Bank Kenya Limited

Defendant

Ruling

1. The plaintiff’s suit was dismissed for non-appearance by the plaintiff on 28/2/2022 when the matter was listed for hearing.

2. The plaintiff thereafter filed an application dated 2/3/2022 seeking reinstatement of the suit.

3. The application in supported by the affidavit of Michael Mwita Advocate dated 1/3/2022 in which it is deposed as follows;(i)That the matter had on several occasions come up before court, resting on the attendance of the February 28, 2022 when the matter was dismissed for want of prosecution;(ii)That the main reason for the dismissal was a grave miscommunication between the advocates from the law firm;(iii)That being earlier of the impression that Mr Koech was before the court of appeal, he indicated to court that Mr Koech was before the court of appeal and chances of him proceeding were minimal and hence sought an adjournment on his behalf with an undertaking to pay costs to the defendant/respondent;(iv)That he was not aware that his colleague, Mr Koech was not before the court of appeal but rather before the land court. The confusion arose after he noted from his diary that the court of appeal matter was indicated to be coming up in court on the 28th of February 2022 whereas the same had been dispensed with on the 22nd of February 2022;(v)That Mr Koech informs him that he had earlier on spoken to the plaintiff and informed him that the matter was for hearing and he stated that he would be available at 11:30am for the hearing; and that he was not aware that Mr Koech had communicated to Mr Morata that he would be ready to proceed at 11:30am, had he received this information, he would have diligently informed the court so;(vi)That there was a miscommunication between the three of them and that is why he was constrained to seek for an adjournment while willingly begging the court to allow them pay whichever costs that the defendant would request as compensation; and that despite his pleas and requests the matter was eventually dismissed for want of prosecution.(vii)That the claim in the suit is of a huge amount of money and that the plaintiff has heavily invested in this matter, that its dismissal will be gravely prejudicial to him;(viii)That he prays the mistakes of counsel are not visited upon the innocent plaintiff, as it stands to suffer greatly since he had been willing to prosecute this matter and was willing to proceed to hearing on the 28th of February 2022, save for the miscommunication between the advocates;(ix)That the applicant has an arguable suit with high chances of success and it is in the best interest of justice that this suit be reinstated so that it can be heard and determined on merits.(x)That the applicant stands to suffer prejudice if the orders sought are not granted and the defendant will suffer no prejudice if the suit is reinstated and the dismissal orders set aside.

4. The defendant/respondents filed a replying affidavit dated 1/4/2022 sworn by Keziah Ruto in which it is deposed as follows;(i)That she is the legal officer of the defendant/respondent and has been duly authorized to swear this affidavit on its behalf;(ii)That the applicant’s advocates have not been ready to proceed with the hearing of this matter since it was first certified ready for hearing on the 18th of June, 2019, and on the 28th of February, 2022, nearly 3years after the matter had initially been certified ready for hearing, the applicant’s advocates were still not ready to proceed with the hearing;(iii)That despite one counsel from the firm of Bett & Co Advocates stating that they shall be ready to proceed with the hearing, the other came and applied for an adjournment on grounds that the Advocate in conduct of the matter was attending to another matter before the court of appeal;(iv)That the application for adjournment was opposed by counsel for the respondent who applied for dismissal of the suit for want of prosecution, an application which was allowed and which prompted the filing of the instant application;(v)That as demonstrated the applicant has on multiple occasions sought adjournments of the matter on various reasons, which clearly demonstrates that the applicant was not ready to prosecute its case at the expense of the respondent;(vi)That the grounds for adjournment provided by the applicant’s advocate and the explanation provided in the affidavit in support of the application is contradictory;(vii)That in as much as the applicant blames the miscommunication of the counsels for the dismissal, this reason is not sufficient to have the matter reinstated;(viii)That the hearing date was taken by consent of both parties in court and that confirmed that the date was convenient for both of them;(ix)That from the previous adjournments sought by the applicant, it is likely that this adjournment was staged to delay the prosecution of the matter;(x)That this suit was filed five years ago and it has never been heard, reinstating the suit will occasion the respondent significant prejudice as it deserves some respite from the anguish occasioned in defending a suit that the applicant has never been willing to prosecute;(xi)That the applicant has never been ready and willing to prosecute this suit and it is highly unlikely that it would if granted another chance and it is in the interest of justice that this application is dismissed for it is an abuse of the court process.

5. The applicant filed a further affidavit dated 9/5/2022 sworn by Reuben Kihiko Muruguru which it is deposed as follows;(i)That he is the director of the plaintiff/applicant;(ii)That the mistakes of his advocates are excusable as they are not deliberate evasions meant to defeat the course of justice;(iii)That he should not suffer for the mistakes of his advocates, which mistakes can easily be resolved by payment of costs, which costs he is willing and ready to pay;(iv)That Mr Morata, counsel holding brief for Mr. Koech indicated to court that they were ready to proceed with one witness and the matter was confirmed for hearing at 11:00am;(v)That unless the orders sought are granted, he stands to suffer extreme prejudice, harm and loss as the claim involves a huge amount of money.

6. The parties filed written submissions in the application dated 2/3/2022 which were as follows;The applicant submitted that the suit involves a liquidated claim of over Kshs 45, 624, 712, and if the suit is not reinstated and heard on merit, the applicant stands to suffer irreparable prejudice. It was the applicant’s submission that the mistakes of his counsels should not be visited upon him, as he has always been willing to prosecute this matter, and on the 28th of February, 2022, he was in court waiting for the hearing to proceed; and also that he has an arguable case with high chances of success and it is in the best interest of justice that the suit be reinstated and heard on merit.

7. The applicant also submitted that the respondent in this matter does not stand to suffer any prejudice incase the re-instatement is allowed and that any inconvenience that may be suffered by the respondent can be cured by the award of costs.

8. The respondent on the other hand submitted that this matter has been in court for over five years and the applicant has taken every step in ensuring that the matter does not proceed, and the court should therefore find that the delay in prosecuting the matter is prolonged and inexcusable.

9. The respondent also submitted that it is in the interest of a fair trial to determine a suit expeditiously, and the respondent is prejudiced by the existence of a stagnant suit which the applicant has never been willing to prosecute. It was submitted that no cogent reasons have been provided by the applicant for the inordinate delay in prosecuting the matter and the application to reinstate the suit should be dismissed with costs.

10. I have considered the written submissions and averments in the affidavits filed herein.

11. Section 3A of the Civil Procedure Act, gives the court wide discretion over matters before it, including matters of reinstatement of suits dismissed for want of prosecution. 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.”

12. Article 50 (1) of the Constitution, also contains fundamental principles that should guide the court in matters of reinstatement of suits, it states as follows: - “Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body.”

13. The court in Ronald Mackenzie v Damaris Kiarie [2021] eKLR, stated as follows: “It is trite that the decision on whether the suit should be reinstated for trial is a matter of judicial discretion and it depends on the facts of each case. The principles that should guide the court when dealing with such an application were well laid out in the case of Ivita v Kyumbu [1984] KLR 441 which are; the reasons for the delay; whether the delay is prolonged and inexcusable and if justice can still be done despite the delay.”

14. In James Yanga Yeswa v Bob Morgan Services Limited [2019] eKLR, the court cited the case of Birket v James [1978] A.C. 297, which set out the principles that the courts ought to consider in an application for reinstatement of a suit after dismissal for want of prosecution as follows: “I will discern the principles which the law has developed to guide the exercise of discretion by court in an application for dismissal of suit for want of prosecution. These principles are:1. Whether there has been inordinate delay on the part of the plaintiffs in prosecuting the case;2. Whether the delay is intentional, contumelious and, therefore, inexcusable;3. Whether the delay is an abuse of the court process;4. Whether the delay gives rise to substantial risk to fair trial or causes serious prejudice to the defendant;5. What prejudice will the dismissal occasion to the plaintiff?6. Whether the plaintiff has offered a reasonable explanation for the delay;7. Even if there has been delay, what does the interest of justice dictate: lenient exercise of discretion by the court?”

15. In Philip Keipto Chemwolo & another v Augustine Kubende [1986] eKLR, the court of appeal stated as follows “unless there is fraud or intention to overreach, there is no error or default that cannot be put right by payment of costs. The court, as is often said, exists for the purpose of deciding the rights of the parties and not for the purpose of imposing discipline.”

16. I find that the dismissal of the suit was as a result of the mistake of his Advocate. It is not in the interest of justice to drive a party from the seat of judgment for mistakes not of his own making.

17. The defendant can be compensated by payment of costs.

18. I allow the application dated 2/3/2022 on the following conditions;(i) That the plaintiff pays thrown away costs of Kshs 45, 000. (ii) That the hearing of this case proceeds on 23/6/2022

DELIVERED, SIGNED AND DATED AT KERICHO THIS 17TH DAY OF JUNE 2022. A. N. ONGERIJUDGE