[2022] KEHC 16145 (KLR)

SBI International Holdings AG (Kenya) & another v Commercial Bank of Africa Limited (Civil Suit 40 of 2014) [2022] KEHC 16145 (KLR) (Commercial and Tax) (9 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16145 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Commercial and Tax

Civil Suit 40 of 2014

A Mabeya, J

December 9, 2022

Between

SBI International Holdings AG (Kenya)

1st Plaintiff

Reynolds Construction Company (NIG) Ltd

2nd Plaintiff

and

Commercial Bank of Africa Limited

Defendant

Ruling

1. Before court is the plaintiffs’ application dated 24/06/2021. The same was brought under article 50 and 159 (d) of the Constitution, order 12 rule 7 and order 51 rule 1, rule 15 of the Civil Procedure Rulesand section 1A and 3A of the Civil Procedure Act.

2. The plaintiffs sought that the order of November 3, 2020 dismissing the suit for non-attendance and want of prosecution be reviewed, varied and/or be set aside and the suit be re-instated for hearing and determination on merit.

3. The application was premised on the grounds that on June 24, 2021, after several attempts to locate the court file, with a view of fixing a date for hearing, the plaintiff’s advocates learnt that on the November 3, 2020, the court had dismissed the suit without the knowledge and or participation of the plaintiffs or their advocates. That the plaintiffs were neither aware of the dismissal nor were they served with a notice to show cause.

4. That the applicants have on several occasions made efforts to peruse the court file with a view of securing a suitable hearing date for the suit but due to Covid-19 restrictions imposed by the government and the Judiciary’s guidelines in adhering to the Ministry of Health guidelines on the containment of the virus, perusal of the file and fixing of a date was not possible.

5. Further, that the suit was not mapped and all attempts by the plaintiffs’ advocates to reach out to the registry to map the file were rendered futile thereby compounding issues. That prior to the dismissal order of November 3, 2020, the suit had been referred to mediation and the parties had submitted themselves to the court annexed mediation to try and settle the matter.

6. That the mediation process automatically halted the court process to pave way for alternative dispute resolution. That after several sessions, the parties were unable to reach a settlement and a mediator’s report to that effect was filed. Thereafter, the matter was to be mentioned before the deputy registrar for reactivation.

7. The plaintiffs pleaded that they have always been interested in the prosecution of the case and the record will confirm that other than on November 3, 2020, the plaintiffs have never missed any court session in the matter and that it will serve the interests of justice if the suit is reinstated for hearing on merit.

8. The respondent opposed the application vide a replying affidavit sworn on July 13, 2021 by its legal counsel. He averred that the mediation between the parties did not reach a settlement and the mediation report to that effect was issued on November 17, 2017. That the plaintiffs took no action to prosecute the suit from November 17, 2017 upto the time of dismissal. That they never set down the case for case management or for hearing.

9. That it was not necessary to map the court file to fix a hearing date as dates are fixed using the physical file. That the defendant’s advocates received an email from court requiring attendance for a mention on November 3, 2020. During the said mention, there was no appearance by the plaintiffs.

10. It was asserted that any problems relating to operation of the court registry and access to court files due to Covid 19 only started in March 2020 and cannot explain the inaction by the plaintiffs since November 17, 2017. That the defendant relied on 6 witnesses in the suit, all of whom have left its employment save for one. That in the premises, it would be very difficult and/or impossible for the defendant to get the witnesses to attend court.

11. The court has considered the record and submissions of the parties. It is not in dispute that this matter was referred to mediation on October 21, 2016 and that the parties submitted to the mediation process. A report issued by the mediator indicated that the parties failed to reach an agreement and the matter was assigned for hearing and determination before Nzioka on March 13, 2018.

12. The next time this matter was before court was on November 3, 2020 before Thande J. In ordering that the suit be dismissed for want of prosecution, Thande J noted that the matter was last in court on March 13, 2018 and since then, the plaintiff had not taken any steps to prosecute it. She further noted that the notice of the mention before her had been served on the parties, yet the plaintiffs’ advocate was not present.

13. Order 17, rule 2(1) of theCivil Procedure Rulesprovides: -“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.”

14. While rule 2(5) thereof provides: -“A suit stands dismissed after two years where no step has been undertaken.”

15. The record does not indicate that a notice to show cause was issued by the court nor served upon the plaintiffs. However, my understanding of order 17, rule 2(1) is that a notice to show cause as to why the suit should not be dismissed is not a mandatory requirement before the court dismisses a suit for want of prosecution in particular where there has been no step for two years.

16. In the supporting affidavit sworn by the defendant's operating manager on June 24, 2021, it was averred that the suit was dismissed in the absence of both parties. This is a false statement as the record shows that when the suit was dismissed on November 3, 2020, the defendant’s advocate was present.

17. Further in the affidavit, the plaintiffs contend that their advocates had on several occasions attempted to peruse the file with the intention of securing a suitable hearing date. That the plaintiffs’ advocates reached out to the registry to map the file with a view of securing a suitable hearing date.

18. However, there was no evidence of such attempts. If there were any such attempts, there would have been correspondence from the said advocates to the registry or the deputy registrar.

19. There was an allegation that due to the covid-19 restrictions, the plaintiffs or their advocates were unable to access the court files. The court takes judicial notice that, as contended by the defendant, such restrictions only came into effect in March 2020. That cannot explain the lack of action by the plaintiffs since March, 2018. By the time Covid-19 struck, there had been inaction for about two years.

20. I have considered the reasons put forward by the plaintiffs for inaction. As already stated above, they are neither sound nor satisfactory.

21. Equity aids the vigilant and not the indolent. There has been no cause shown to the satisfaction of this court as to why the suit should not have been dismissed. The defendant would be extremely prejudiced if the suit was reinstated. This is so because, it was stated on oath, which was neither controverted nor challenged, that its witnesses have since left its employment. This in effect means that it might be unable to defend the suit for no fault of its own.

22. Accordingly, I find that the application is without merit and dismiss the same with costs.

23. It is so ordered.

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