[2022] KEHC 12957 (KLR)

Kobil Petroleum Limited v Kenya Ports Authority (Civil Suit 105 of 2003) [2022] KEHC 12957 (KLR) (Commercial and Tax) (9 September 2022) (Ruling)

Neutral citation: [2022] KEHC 12957 (KLR)

Republic of Kenya

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

Commercial and Tax

Civil Suit 105 of 2003

A Mabeya, J

September 9, 2022

Between

Kobil Petroleum Limited

Applicant

and

Kenya Ports Authority

Respondent

Ruling

1. Vide an application dated 10/9/2021, the plaintiff prayed for the setting aside of the order given on 22/2/2018 that dismissed this suit for want of prosecution and for the suit to be reinstated.

2. The grounds were that the suit was dismissed for want of prosecution on 22/2/2018. That neither the plaintiff nor its advocates on record at the time were aware that the suit had been listed for dismissal for want of prosecution. That the suit is part of a series of suits between the same parties in HCC 128 of 2014 and HCC 216 of 2009 which raise similar issues of fact and law. That HCC 128 of 2014 had been designated as a test suit as the three matters raised similar issues of fact and law.

3. That there had been out of court negotiations aimed at settling all of the disputes between the parties. That Court annexed mediation had been attempted in HCC 128 OF 2004 and the matter was referred to mediation on 17/12/2018. Mediation collapsed and the proceedings were terminated on 18/3/2021.

4. That HCC 128 of 2004 has been very active and that it would be in the interest of justice for this suit to be reinstated as the plaintiff has a huge claim against the defendant.

5. The defendant opposed the application vied a replying affidavit sworn on October 12, 2021 by its principal legal officer. He 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.

6. That at the time of dismissal, the plaintiff had not taken any steps to prosecute the matter for 4 years. That since the suit was dismissed in February 2018, the plaintiff had exhibited unreasonable delay to have the suit reinstated.

7. That 8 years have lapsed since the matter was last prosecuted in 2014 and 3 years since the matter was dismissed for want of prosecution. That that there is neither an order of the court nor a consent between the parties directing or indicating that Nairobi High Court Civil Suit N0. 128 of 2004 is a test suit in the pending suits between the parties. That the reliance by the plaintiff on the referral to Mediation of HCCC No. 128 of 2004 to justify inaction in this suit are baseless and contrived to mislead this Court.

8. That these aforementioned suits are not linked in anyway as alleged since throughout their pendency, they were prosecuted distinctively by the parties. That 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 while others were retired and it will be difficult to trace them.

9. The gravamen of this application is whether the court order of 22/2/2018 ought to be set aside and in so doing reinstate the suit. The principles applicable are; the reason for the dismissal and none attendance, the length of the delay in making the re-instatement application and the prejudice, if any to be suffered by the opposite party.

10. Order 17, rule 2(1) of the Civil Procedure Rules provides for dismissal of suits for want of prosecution. The plaintiff averred that it was not served with any notification that the suit had been listed for dismissal for want of prosecution.

11. The defendant on its end asserted that the plaintiff has failed to discharge the burden of showing that the Court did not give proper notification to the plaintiff before dismissal.

12. The record shows that on 22/2/2018, when the suit was dismissed, the defendant’s counsel was present but the plaintiff’s counsel was not. On the said date, Majanja J, in dismissing the suit noted that there had been no action to prosecute the suit since 23/9/2014 and that no cause had been shown.

13. There is no dispute that a proper notice to show cause was issued by the Court. The plaintiff did not attend court to show cause. By that time, the suit had remained unprosecuted for 4 years. The Court found that no cause had been shown.

14. The plaintiff pleaded that this matter had been consolidated with HCC 128 of 2004 and HCC 216 of 2009 with the former being designated as the test suit for the 3 matters and that HCC 128 of 2004 had been active in court.

15. There is no court order nor consent on record to prove this assertion. It is further noted that the court referred HCC 128/2004 to mediation on December 17, 2018 and by that time, this suit had already been dismissed on 22/2/2018. Therefore, this argument is baseless.

16. The Notice under Order 17 may be issued through the Court’s Cause List or website. There is no prove that the plaintiff’s advocate was unaware of the notice on the Cause List of the Court for the day.

17. This is the plaintiff’s case against the defendant. It was its obligation to zealously prosecute the same. It failed to do so for about 4 years before the suit was dismissed. Obviously, no good reason had been given. No cause has been shown.

18. As regards the filing of the present application, the plaintiff took another 3 years before lodging the same. There was no explanation for the delay. That was an unexplained inordinate delay.

19. Equity aids the vigilant and not the indolent. There has been no cause shown to the satisfaction of this Court as to why this suit should be reinstated. In fact, the defendant would be prejudiced as it pleaded, which was not denied, that due to the passage of time, the witnesses would not be able to be traced.

20. In the premises, I find the application dated 10/9/2021 to be without merit and is dismissed with costs.It is so ordered.

DATED AND DELIVERED AT NAIROBI THIS 9TH DAY OF SEPTEMBER, 2022. A. MABEYA, FCIArbJUDGE