[2022] KEHC 12958 (KLR)

Kenya Oil Company Limited v Kenya Port Authority (Civil Suit 216 of 2009) [2022] KEHC 12958 (KLR) (Commercial and Tax) (16 September 2022) (Ruling)

Neutral citation: [2022] KEHC 12958 (KLR)

Republic of Kenya

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

Commercial and Tax

Civil Suit 216 of 2009

A Mabeya, J

September 16, 2022

Between

Kenya Oil Company Limited

Plaintiff

and

Kenya Port Authority

Defendant

Ruling

1. This is a ruling on the plaintiff’s motion on notice dated 10/9/2021. It sought the reinstatement of this suit which had been dismissed on 18/6/2015.

2. The application was brought pursuant to sections 1A, 1B, 3 and 3A of the Civil Procedure Act and rule 3(1) and (2) of the High Court (practice and procedure rules).

3. The grounds for the application were that the suit was dismissed for want of prosecution on 18/6/2015; that the plaintiff and their advocates at the time were not notified that the suit had been listed for dismissal for want of prosecution; that this suit is part of a series of suits between the same parties, to wit, HCC 105/2003 and HCC 128/2004 which raise similar issues of fact and law.

4. That HCC 128/2004 had been designated as a test suit as the three matters raise similar issues of law; that there have been out of court negotiations aimed at settling all of the disputes between the parties and that court annexed mediation had been attempted in HCC 128/2004 but was terminated on 18/3/2021.

5. The plaintiff argued that it is in the interest of justice to have the suit reinstated as the plaintiff will suffer immense prejudice given the huge claim against the defendant.

6. In ardent opposition to the instant application, the defendant lodged a replying affidavit sworn on December 10, 2021 by its principal legal officer.

7. It was averred that upon perusal of the court file it was apparent that before the court dismissed the matter, it had effected service of the notice to show cause. That however, there was no satisfactory response from the plaintiff on why the suit should not be dismissed. That at the time of dismissal, the plaintiff had not taken any steps to prosecute the matter for 10 years since 2012 and that 7 years had lapsed since the matter was dismissed for want of prosecution.

8. That there is neither an order of the court nor a consent between the parties directing or indicating that Nairobi High Court Civil Suit No 128 of 2004 is a test suit for Nairobi High Court Civil Suit No 105/2003 and this suit. That the reliance by the plaintiff on the referral to mediation of HCCC No 128 of 2004 to justify inaction in this suit is baseless and contrived to mislead the court.

9. It was further contended that the aforementioned suits are not linked in anyway as alleged since throughout their pendency, they were prosecuted distinctively by the parties. That in any event, the defendant will be unable to mount a good defence as the evidence that it intended to rely on may be unavailable, the memory of its witnesses may have faded over time. That some of the witnesses were discharged from duty, others retired and it will be difficult to trace them. It was urged that the application be dismissed.

10. This is an application to re-instate the suit which had been dismissed for want of prosecution. The principles applicable are the reason for dismissal, the length of the delay or put in another way, the application should be made timeously and finally, what prejudice, if any would be suffered by the opposite party if the orders are granted.

11. Order 17, rule 2(1) of the Civil Procedure Rules states:“In any suit in which no application has been made or step taken by either party for one year, the court may give notice in writing to the parties to show cause why the suit should not be dismissed, and if cause is not shown to its satisfaction, may dismiss the suit.”

12. When the matter came up for notice to show cause as to why this suit should not be dismissed on 18/6/2015, none of the parties appeared. As such the court proceeded to dismiss the suit as no cause was shown.

13. While dismissing the suit, the court noted that there had been an inordinate delay of 3 years since the last step was taken to proceed with the suit and that a notice to show cause had been effected with no satisfactory response.

14. The plaintiff averred that it was not served with any notification that the suit had been listed for dismissal for want of prosecution.

15. The record shows that the court did issue the notice to show cause to the parties. Even if the plaintiff was unaware of the dismissal, there is no explanation why it took the plaintiff 5 years to bring the present application on 10/9/2021. That delay is extremely in-ordinate and no explanation was given for the same.

16. One would be forgiven in concluding that the plaintiff had no interest in prosecuting the suit. Firstly, the plaintiff failed to take action on the suit for more than 3 years since 2015. Then when called upon to show cause, it failed to show any either in 2015 or in its current application. Finally, even after the suit was dismissed in 2015, the plaintiff did not bother to seek its status until 5 years later in 2021.

17. The plaintiff’s explanation was that this suit had been consolidated with HCC 128 of 2004 and HCC 105 of 2003 with the former being designated as the test suit for the 3 matters and that HCC 128 of 2004 had been active in court. The defendant denied any consolidation order.

18. The court has considered the record. There is no evidence of any court order or consent to consolidate this suit with the other suits. If there was any, it was upon the plaintiff to prove it but it failed to.

19. The court notes that HCC 128/2004 was referred to mediation on December 17, 2018. By that time, this suit had remained dismissed for over 3 years. In this regard, the reference to mediation had nothing to do with this suit.

20. Equity aids the vigilant and not the indolent. There has been no cause shown to the satisfaction of the court as to why this suit should be reinstated. Conversely, the defendant would be the prejudiced party if this suit is reinstated 7 years after it was dismissed. It may experience challenges in securing the attendance of witness. Its evidence may be unavailable.

21. In view of the foregoing, I find the application dated 10/9/2021 to be without merit and dismiss the same with costs.

It is so ordered.

DATED AND DELIVERED AT NAIROBI THIS 16TH DAY OF SEPTEMBER, 2022. A. MABEYA, FCIArbJUDGE