[2022] KEHC 12145 (KLR)

Maersk Kenya Limited v Inclusive Agencies Limited (Civil Appeal 7 of 2018) [2022] KEHC 12145 (KLR) (13 June 2022) (Ruling)

Neutral citation: [2022] KEHC 12145 (KLR)

Republic of Kenya

In the High Court at Mombasa

Civil Appeal 7 of 2018

OA Sewe, J

June 13, 2022

Between

Maersk Kenya Limited

Applicant

and

Inclusive Agencies Limited

Respondent

Ruling

[1]This ruling is in respect of the notice of motion dated November 19, 2021. That application was filed under section 1A, 1B and 3A of the Civil Procedure Act, Chapter 21 of the Laws of Kenya, order 17 rule 2(1), (3) and order 51 rule 1 of the Civil Procedure Rules, 2010, for orders that:[a]the court be pleased to dismiss the plaintiff’s suit for want of prosecution; and[b]the costs of the suit be borne by the plaintiff.

[2]The application was premised on the grounds that the plaintiff has failed to take any steps to prosecute the suit herein since December 8, 2017, a period of more than three years now; and therefore that the plaintiff has been guilty of prolonged, inordinate and inexcusable delay in prosecuting this suit. It was also the contention of the defendant that the plaintiff’s failure to take any steps to prosecute this suit amounts to an abuse of the process of the court and runs contrary to the overriding objective as stipulated under section 1A and 1B of the Civil Procedure Act. The defendant added that the continued pendency of the suit hovers ominously over it and is causing it unnecessary hardship and anxiety; and therefore that it is in the interest of justice that the suit be dismissed for want of prosecution.

[3]The application was supported by the affidavit of Natasha Nyakerario Gichuki, sworn on November 19, 2021 in which it was averred that this suit was instituted by way of a plaint on October 15, 2015 before the Milimani Commercial & Tax Division, Nairobi. Concomitantly, the plaintiff filed an application under certificate of urgency seeking orders to restrain the defendant from contracting any other party to render crew transfer services and crew logistical support pending the hearing and determination of the application as well as the main suit. The application was opposed by the defendant; who thereafter filed an application dated February 16, 2016 for striking out the suit for disclosing no cause of action.

[4]That was the stage at which the proceedings were when directions were made for the transfer of the suit to the High Court in Mombasa for hearing. Upon hearing the application for striking out, the court (Hon PJ Otieno, J) dismissed it on June 22, 2018. The defendant now contends that, since then, no action has been taken by the plaintiff to prosecute this matter; and therefore that it ought to be dismissed with costs, as its continued pendency is prejudicial to its interests.

[5]In response to the application, the plaintiff filed a replying affidavit on March 16, 2022 sworn by one of its directors, John Evangelist Otieno. While conceding that no action was taken by the plaintiff to prosecute this suit, he explained that this was because the parties were awaiting a ruling by Hon Otieno, J, which ruling was only delivered on June 22, 2018. He further averred that thereafter the plaintiff engaged another firm of advocates to take over the matter, namely, M/s Okanga & Company Advocates; and that they have since filed an application to amend the plaint which is pending hearing. Thus, Mr Otieno pleaded with the court to give the plaintiff an opportunity to prosecute his suit and blamed his erstwhile advocates, Bigambo & Bigambo Advocates, for the delay.

[6]Order 17 rule 2 of the Civil Procedure Rules, pursuant to which the application has been brought, is explicit that:(1)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.(2)If cause is shown to the satisfaction of the court it may make such orders as it thinks fit to obtain expeditious hearing of the suit.(3)Any party to the suit may apply for its dismissal as provided in sub-rule 1. (4)The court may dismiss the suit for non-compliance with any direction given under this order.

[7]Accordingly, the issues falling for consideration in this application are:[a]Whether there has been inordinate delay herein in the prosecution of the suit;[b]Whether the delay is excusable; and,[c]Whether the applicant has been prejudiced by the delay.

[8]In the case of Allen v Sir Alfred McAlpine [1968] All ER 543 at p 546, Lord Denning, MR, aptly stated that:'The delay of justice is a denial of justice...all through the years men have protested at the law's delay and counted it as a grievous wrong, hard to bear.To put right this wrong, we will in this court do all in our power to enforce expedition; and if need be, we will strike out actions when there has been excessive delay. This is a stern measure; but it is within the inherent jurisdiction of the court, and the rules of court expressly permit it.'

[9]Accordingly, I have perused the court record and confirmed that the suit was dormant between June 22, 2018 when Hon Otieno, J delivered his ruling in respect of the defendant’s application for striking out the suit, and December 2, 2021 when the instant application was filed. That is a period of about two and a half years. The explanation at paragraph 3 of the plaintiff’s replying affidavit that the reason for the delay was the pendency of the ruling is untenable; noting that the delay being spoken of here concerns the period after the ruling and not before. In essence therefore, no explanation was given for that delay. It is therefore not only inordinate, but also unexplained.

[10]It is however manifest too that the plaintiff has since changed advocates and filed an application dated December 17, 2021 seeking leave to amend his plaint. Accordingly, the question to pose is whether justice can still be done in spite of the delay? And my answer to the question is yes, there being no demonstration by the defendant that it stands to suffer such prejudice for which an award of costs would not suffice.

[11]Indeed, in Ivita v Kyumbu [1975] eKLR it was held that:'The test is whether the delay is prolonged and inexcusable, and, if it is, can justice be done despite such delay. Justice is justice to both the plaintiff and defendant; so both parties to the suit must be considered and the position of the judge too, because it is no easy task for the documents, and, or witnesses may be missing and evidence is weak due to the disappearance of human memory resulting from lapse of time. The defendant must however satisfy the court that he will be prejudiced by the delay or even that the plaintiff will be prejudiced. He must show that justice will not be done in the case due to the prolonged delay on the part of the plaintiff before the court will exercise its discretion in his favour and dismiss the action for want of prosecution. Thus, even if delay is prolonged if the court is satisfied with the plaintiff's excuse for the delay the action will not be dismissed, but it will be ordered that it be set down for hearing at the earliest available time.'

[12]In the premises, although this application is unopposed, I am inclined to dismiss it with an order that the costs thereof be paid to the defendant by the plaintiff in any event; and that the pending application be prosecuted without further delay.

[13]Orders accordingly.

DATED, SIGNED AND DELIVERED VIRTUALLY AT MOMBASA THIS 13TH DAY OF JUNE 2022. .............................................OLGA SEWEJUDGE