[2016] KEHC 6600 (KLR)
The court found that the defendant/applicant had not demonstrated any convincing or sufficient grounds to justify the inordinate delay of over 3 years and 7 months in filing the application to set aside the dismissal order. The explanations offered, namely financial difficulties and intention to change advocates,...
Source-derived case information.
- Citation
- [2016] KEHC 6600 (KLR)
- Parties
- Plaintiff: Kenya Commercial Bank Ltd; Defendant: Lexinda Travels Ltd
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 346 of 2002
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Set Aside Dismissal Order
- Outcome
- application dismissed
- Judges
- CM Kariuki
- Legal Topics
- Setting Aside Orders, Inordinate Delay, Dismissal for Non Attendance, Reinstatement of Suit
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenya Commercial Bank Ltd
Plaintiff
Lexinda Travels Ltd
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Dismissal Order
Legal Issues
- 1 Whether there was inordinate delay in filing the application to set aside the dismissal order.
- 2 Whether the reasons advanced for the delay were justified and sufficient to warrant setting aside the dismissal order.
Ratio Decidendi
The court found that the defendant/applicant had not demonstrated any convincing or sufficient grounds to justify the inordinate delay of over 3 years and 7 months in filing the application to set aside the dismissal order. The explanations offered, namely financial difficulties and intention to change advocates, were not credible, especially given the relatively low filing fee compared to the amount claimed in the counterclaim. The court emphasized that the record showed a consistent lack of interest by the defendant/applicant in prosecuting the matter, with repeated adjournments and failure to take action over a period of almost 13 years. The plaintiff/respondent also indicated no...
Court Disposition
application dismissed
Orders
- The Notice of Motion dated 18.9.2015 is dismissed.
- Parties to bear their own costs.
Full Case Text
Judgment text and source record
37 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
COMMERCIAL & ADMIRALTY DIVISION
HCC. CASE NO. 346 OF 2002
KENYA COMMERCIAL BANK LTD ……………………………PLAINTIFF
VS.
LEXINDA TRAVELS LTD……………………………………….DEFENDANT
RULING
By a Motion dated 18. 9.2015 the Defendant/Applicant prays for the Orders of 7. 2.2012 to be set aside plus costs. The application is anchored on Article 50 (1), 159 (2) (d) Constitution of Kenya, Section 1A, 1B 3 and Orders 12 Rule 7 and 51 Rules 1 & 4 CPR 2010 inter alia.
The application is based on the grounds on the face of the motion and is supported by the affidavit of ELLISTONE KIWINDA sworn on 15. 9.2015. The application is opposed by the Plaintiff/Respondent and it has filed grounds of opposition dated 7. 12. 2015.
THE APPLICANT CASE
The parties delayed in taking steps in the matter since the filing of defence and counter claim dated 30. 9.2002 and reply to Defence and Counter claim on 16. 10. 2002.
The Applicant avers that it had expressed intention to change advocates but the suit was dismissed in the transition period. The Defendant delayed in taking action on making a move due to financial problems it was experiencing.
The Applicant submits that it will suffer injustice if the Counter claim is not reinstated.
RESPONDENT CASE
The Respondent avers in the grounds of opposition that the application is a non starter and does not lie. It is also devoid of merit, frivolous and vexation.
The Applicant is accused of delay in lodging it since the order of dismissal was made after a span of 3 years 7 months. There are no reasons advanced to explain the delay aforesaid nor has the defendant demonstrated grounds for setting aside the impugned order.
In the Respondent Counsel submissions, the Respondent indicated that it has no intention of having the Plaintiff case revived and/or reinstated. The Respondent submits that there is inordinate delay and unjustified thus a need to let the dismissal Orders to remain undisturbed.
ANALYSIS
After perusing the application, affidavits, grounds of opposition and the parties oral submissions, I find the issues arising are;
Whether there is inordinate delay in filing the application?
If the answer in affirmative whether there is justified grounds for the delay?
On 19. 3.2002 the Plaintiff/Respondent lodged claim for Ksh.1,256,495, against Defendant and upon service with summons the Defendant filed Defence and Counter Claim on 30. 9.2002 claiming for Kshs.561,990/=/
The matter came for hearing on 2. 4.2003 but the Defendant counsel was unwell and thus the matter was adjourned.
On 10. 5.2004 the matter came again for hearing but the Defendant advocate was not ready to proceed and intimated that due to want of instructions, he intended to cease acting for the Defendant and thus the matter was once more adjourned.
Come 22. 9.2005 the matter came for hearing again, but Mr. Mburu advocate for Defendant was not ready to proceed with the hearing. Once more on the 20. 11. 2009 the matter came for hearing of the suit, and the Defendant MD appeared in court but instead of proceeding with the hearing, he sought an adjournment to enable him engage another advocate.
Further on the 9. 2.2010 the matter came for hearing and the Defendant sought an adjournment once more to engage another advocate. Finally on the 7. 2.2012 the matter came for hearing and no party was present and thus the Judge dismissed the suit.
From the aforesaid record, it is clear that the Defendant/Applicant was never interested to have the matter heard. This is a matter which has taken almost 13 years since filing without any action being taken. The Applicant took over 3 years 7 months since order of dismissal was made to lodge the instant application for setting aside the impugned Orders.
The Plaintiff has rightly said it has no interest in pursuing the matter. The grounds advanced by the Applicant that it had financial problems and that it intended to change advocates are not convincing at all.
The filing fee for the motion is less than Kshs.1000 and the court cannot be convinced that a party claiming over Kshs.1/2 million could not raise a Ksh.1000 to lodge the motion.
The court thus finds that the application has no merit and makes the following orders;
The Notice of Motion dated 18. 9.2015 is dismissed.
Parties bear their costs.
Dated, signed and delivered in court at Nairobi this 5th day of February, 2016.
………………………………
C. KARIUKI
JUDGE