[2022] KEHC 14137 (KLR)

Sifa Insurance Brokers Company Limited v Maseno University (Civil Case 460 of 2007) [2022] KEHC 14137 (KLR) (Commercial and Tax) (7 October 2022) (Ruling)

Neutral citation: [2022] KEHC 14137 (KLR)

Republic of Kenya

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

Commercial and Tax

Civil Case 460 of 2007

A Mshila, J

October 7, 2022

Between

Sifa Insurance Brokers Company Limited

Applicant

and

Maseno University

Respondent

Ruling

1. The notice of motion dated March 8, 2021 was brought under order 17 rules 2 & 6 of the Civil Procedure Rules for orders that;a.This suit be reinstated.

2. The application was supported by the sworn affidavit of Paul Gogo who stated that on/or about May 2015, the applicant discovered that the court file in respect of this matter was missing, lost and/or misplaced.

3. The applicant's attempts to trace the file proved futile prompting them to apply tor reconstruction of the same on February 6, 2020 vide Milimani Hc Comm Misc No E894 of 2020. Consequently, the court file was traced during the pendency of Hc Comm Misc No E894 of 2020.

4. The applicant has learnt that this suit was dismissed for want of prosecution on September 19, 2018 and on September 20, 2018. Non prosecution of the suit was caused by loss of the court file and not by any fault on the part of the applicant. The applicant stands to suffer irreparable loss if the application is not allowed.

Applicant’s case 5. It was the applicant’s case that the disappearance of a court file is not a mistake on the part of a litigant or its counsel. It was not the applicant's intention not to prosecute this case. Had the court file been available, the applicant or its counsel would have prosecuted the case and the same would not have been dismissed for want of prosecution. As it stands, the suit was dismissed without affording the applicant an opportunity to be heard thereby breaching one of the applicant's fundamental constitutional rights and freedoms.

6. Article 50 of theConstitution provides that every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court. Under article 47 of theConstitution, every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.

7. The applicant submitted that it was prejudiced and was denied the foregoing constitutional rights namely; fair hearing and fair administrative action. The applicant was not informed that this suit was scheduled for dismissal for want of prosecution either on September 19, 2018 or on September 20, 2018 as well. The applicant only learnt about these dates from the court's online portal. Had the applicant been given an opportunity to present its side of the story, it would have informed the court of all the events which occurred prior to dismissal of the suit for want of prosecution. The applicant stands to suffer irreparable loss if it's not reinstated to the throne of justice.

8. InAutosteel & Tiles Limited v Mohamed Mohamoud Abdi & Kheira Maalim Mohamed T/A Sunrise Shopping Mall [2014] eKLR, the court emphasized the need for service of a notice to show cause before proceeding to dismiss a litigant's case.

9. Further, at paragraph 6 of the replying affidavit, the respondent's legal officer deponed that the applicant was served with a show cause notice on August 24, 2018. This is neither true nor correct. The respondent's legal officer cannot swear an affidavit on service which she did not effect. She further alleges, wrongly so, that the applicant received the show cause notice but 'still did not bother to show cause and/or to prosecute its case.' The applicant could not possibly have applied for reconstruction of the court file if the same was unavailable or if it was aware that the case had been dismissed for want of prosecution.

10. The applicant argued that the court file has not always been available as alleged by the respondent's counsel. The applicant's correspondences regarding the status of availability of the court file did not elicit any response from both the respondent's counsel and the court.

11. Any delay or mistake by the applicant's erstwhile advocates cannot be attributed to the applicant who pushed its counsel so hard to prosecute the matter which pressure strained the advocate-client relationship forcing them to part ways. The applicant proceeded to instruct a new counsel to prosecute the matter on its behalf.

12. The applicant relied on the case of Lucy Bosire v Kehancha Division Land Dispute Tribunal & 2 others [2013] eKLR where the court reiterated the principles guiding the setting aside of ex parte orders; that the court has wide powers to set aside ex parte orders save that where the discretion is exercised, the court will do so on terms that are just.

13. It was the applicant’s position that under order 17 rule 2 of the Civil Procedure Rules, 2010, a party has a right to receive a notice to show cause in writing and to show cause before an adverse action such as dismissal of a suit is taken. In this case, the applicant did not receive any such notice as prescribed under order 17 rule 2. The provision mirrors one of the requirements of natural justice, audi alteram partem. The present application is an honest step by the applicant to have the suit heard on its merit. it is not an abuse of the court process. The applicant's failure to prosecute the matter was occasioned by factors beyond its control.

Respondent’s case 14. In response, it was the respondent’s position that the case proceeded well until sometime in 2015 when the applicant lost interest in prosecuting the matter, sat back and abandoned the suit. The letters dated May 29, 2015 and June 13, 2016 having been written one (1) year apart with the applicant taking no action between the said dates can only confirm the applicants laxity to prosecute the case. That from June 13, 2016 to August 24, 2018 when the court issued a letter to show cause why the suit could not be dismissed for want of prosecution, the applicant had taken no steps to prosecute the matter not confirming the position of the file or status of its case.

15. The applicant's application to reconstruct the court file came very late on the February 6, 2020 about two (2) years after the matter was dismissed for want of prosecution way back in 2018, showing dishonesty: indolence and lack of interest in the matter. It has been over three (3) years since the matter was dismissed and the applicant is guilty of prolonged and inexcusable delay and has not given any valid reasons for not attending court on September 19, 2018 when the matter came up for dismissal. It goes without saying that the applicant stands to suffer not irreparable loss should their application fail, and the suit non reinstated since equity does not aid the indolent but the vigilant as their application has been filed two years after dismissal thus occasioning inordinate delay.

16. It was the respondent’s submission that order 17 rule 2 of the Civil Procedure Rules provides that a matter should have been pending for 12 months before the court, either on its own motion or on the application of a party, makes an order for its dismissal for want of prosecution.

17. InArgan Wekesa Okumu vs Dima College Limited & 2 others [2015] eKLR the court considered the principles for dismissal of a suit for want of prosecution and that the applicant must show that the delay complained of is inordinate, that the inordinate delay is inexcusable and that the defendant is likely to be prejudiced by such delay.

18. The respondent added that the applicant further learnt that this suit was dismissed for want of prosecution on September 19, 2018 and on September 20, 2018 but only filed an application for its reinstatement on March 8, 2021. The applicant also, did not give any reasons for the two (2) years in between which they learnt of the dismissal of the suit and when it applied for reinstatement of the suit.

19. The respondent argued that it has been over three (3) years since the matter was dismissed and the applicant is guilty of prolonged and inexcusable delay and has not given any valid reasons for not attending court on September 19, 2018 when the matter came up for dismissal. It goes without saying that the applicant stands to suffer not irreparable loss should their application fail, and the suit not reinstated since equity does not aid the indolent but the vigilant as their application has been filed two years after dismissal thus occasioning inordinate delay. That is, abandoning their case for over two (2) years and which delay was inordinate and prayed that there be no reinstatement of the suit.

Issues For determination 20. Having taken into consideration the application, the response therewith and the written submissions by the parties; the court frames only one issue for determination:a.Whether the suit should be reinstated?

Analysis 21. The application herein seeks to reinstate the suit. It is trite that the decision on whether the suit should be reinstated for trial is a matter of judicial discretion and it depends on the facts of each case. The principles that should guide the court when dealing with such an application were well laid out in the case ofIvita vs Kyumbu [1984] KLR 441 which are; the reasons for the delay; whether the delay is prolonged and inexcusable and if justice can still be done despite the delay.

22. Reinstatement of a suit being at the discretion of the court, the discretion ought to be exercised in a just manner, as was held in Bilha Ngonyo Isaac vs Kembu Farm Ltd & another & another [2018] eKLR, which echoed the decision of the court inShah vs Mbogo & Another (1967) EA 116, where the court stated on the matter of discretion:'The discretion is intended so as to be exercised to avoid injustice or hardship resulting from inadvertence or excusable mistake or error but is not designed to assist a person who has deliberatively sought whether by evasion or otherwise to obstruct or delay the course of justice.'

23. On the issue of the delay and whether the same is prolonged and inexcusable; the reason attributed to by the applicant for the delay is that the court file in respect of this matter was missing, lost and/or misplaced and the attempts to trace the file proved futile.

24. To support its argument, the applicant annexed two letters dated the deputy registrar dated May 29, 2015 and 13th june 2016 in an attempt to trace the file. Thereafter, the applicant stated that it learnt that this suit was dismissed for want of prosecution on September 19, 2018 and on September 20, 2018.

25. In rebuttal, the respondent stated that the applicant lost interest in prosecuting the case and that despite being served with the notice to show cause.

26. Upon perusal of the file, this court noted that the court record shows that on September 19, 2018 the issue of dismissing the suit was raised and it was pointed out that the plaintiff’s advocates were no longer on record. On the same date court directed the deputy registrar to confirm whether the advocates for the plaintiff were still on record. On September 20, 2018 it was recorded by the court that the plaintiff’s advocates the firm of Ojienda and Company Advocates were still on record and thus went ahead to dismiss the suit.

27. The respondent also attached a copy of the notice to show cause why the suit could not be dismissed dated August 24, 2018 addressed to both parties by the deputy registrar. The applicant was therefore given an opportunity to show cause why the suit could not be dismissed.

28. It is noteworthy that the present application filed by the applicant is dated March 8, 2021 three years after the applicant learnt of the dismissal of the suit. The applicant has not given any reason for this delay in filing this application.

29. In Mobile Kitale Service Station vs Mobil Oil Kenya Limited & another [2004] eKLR it was held:'I must say that the courts are under a lot of pressure from backlogs and increased litigation, therefore it is in the interest of justice that litigation must be conducted expeditiously and efficiently so that injustice caused by delay would be a thing of the past. Justice would be better served if we dispose matters expeditiously. Therefore, I have no doubt the delay in the expeditious prosecution of this suit is due to the laxity, indifference and/ or negligence of the plaintiff. That negligence, indifference and/or laxity should not and cannot be placed at the doorsteps of the defendant. The consequences must be placed on their shoulders.'

30. The delay has been inordinate and despite the fact the fact went missing, the applicant still delayed in filing this application. Not forgetting that the suit was filed in 2007 and the same has been in court for the past 15 years. There has been a lot of inexcusable laxity by the applicant in prosecuting the case and even in the follow up of the unavailability of the file. It is trite law that justice is justice for both the plaintiff and the defendant and the plaintiff having dragged the defendant to court, it ought to have expedited the prosecution of the matter.

31. From the material placed before this court it is satisfied that this is not a suitable case for the exercise of its discretion.

Findings and determination 32. In the light of the forgoing reasons the court makes the following findings and determinations;i.The application is found to be devoid of merit and is thus dismissed.ii.Each party shall bear its own costs.

Orders Accordingly

DATED SIGNED AND DELIVERED ELECTRONICALLY AT NAIROBI THIS 7TH DAY OF OCTOBER, 2022. HON A MSHILAJUDGEIn the presence of;No appearance of partiesLucy----------------------Court Assistant