[2022] KEHC 17229 (KLR)

Son Hardware Limited v Development Bank of Kenya Limited (Civil Case 44 of 2018) [2022] KEHC 17229 (KLR) (13 December 2022) (Ruling)

Neutral citation: [2022] KEHC 17229 (KLR)

Republic of Kenya

In the High Court at Kajiado

Civil Case 44 of 2018

SN Mutuku, J

December 13, 2022

Between

Son Hardware Limited

Plaintiff

and

Development Bank of Kenya Limited

Defendant

Ruling

1. This Ruling relates to the Notice of Motion dated September 15, 2021 brought by Son Hardware Limited, the Applicant, under section 3, 3A, 1A and 1B of the Civil Procedure Act. It seeks orders that:i.That the order made on July 17, 2020, dismissing this suit be set aside and the suit be reinstated.ii.That cost of this application be provided for.

2. This application is supported by an Affidavit sworn by Peter M Juma, a director of the Applicant. He has deposed sometimes in 2018 he filed this suit together with an urgent application for injunction; that though the injunction was granted he was dissatisfied with the conditions for the grant of the injunction necessitating the filing of an Interlocutory Appeal No 29 of 2019 for which he is waiting for a date for highlighting of submissions. It is his case that he did not receive the Notice to Show Cause issued by this Honourable Court; that the dismissal has a direct impact on the pending Appeal and is therefore it is crucial that this suit be reinstated.

3. The Application Is opposed through a Replying Affidavit sworn by Silas Aluku, the Legal Counsel for the Respondent, on June 16, 2022. It is his deposition that the allegations by the Applicant that he did not receive the Notice to Show Cause is a blatant lie; that this Honourable Court through email on July 5, 2020 notified parties that the matter was fixed for Notice to Show Cause why it should not be dismissed on July 17, 2020; that the Applicant’s email benardkalove@yahoo.com was the one furnished to this Honourable court and the same appears in this instant application and therefore the Applicant cannot allege that he was not in receipt of the same.

4. It is deposed that the Applicant has continued to file numerous applications and suits touching on the same subject matter in the Environment and Land Court being ELC Case No 10 of 2021 and Kajiado High Court Civil Case No E004 of 2022; that the reinstatement of this suit will be in violation of the doctrine of sub-judice; that it is in the best interest of justice that the application be dismissed with costs to the Defendant and that this application is a blatant abuse of court process and is highly prejudicial to the Respondent.

5. The Applicant filed a further affidavit dated October 28, 2022 in which it is argued that their advocates did not provide any email address when the suit was filed on December 3, 2018, as shown in the annexed copy of the Plaint. The Applicant argued that Mr Aluku’s evidence is hearsay at best and is not admissible; that since this matter was dismissed by this court on its own motion, it has unfettered discretion to reinstate it and that it is the court to confirm with the registry whether both parties were duly and properly notified of the dismissal and not the Respondent.

Submissions 6. The Application was canvassed by way of written submissions. The Applicant filed its submissions on July 15, 2022. The Applicant reiterated that the court did not serve the Notice to Show Cause on its advocates; that had they been served they would have shown sufficient cause why the suit should not be dismissed, which is that there was a pending interlocutory appeal in the Court of Appeal against the orders of this court.

7. It is the Applicant’s submission that had the court been aware of the pending appeal, it would not have been dismissed this suit; that the dismissal was at the time when there was lock down due to Covid 19 pandemic with restricted movement outside the Nairobi Metropolitan areas and Kajiado was outside this area and that virtual courts had not been introduced.

8. The Applicant relied on Vita v Kyumbu, [1984] KLR on the applicable principles in dismissing a suit for want of prosecution and submitted that its reason for not prosecuting the suit is justified; that the reason is credible and that the Applicant will move expeditiously to prosecute the suit once the court of Appeal renders its verdict.

9. The Respondent filed its submissions on October 31, 2022. The Respondent submitted that the allegations by the Applicant that it was not served with the Replying Affidavit is false; that the Replying Affidavit was served on the Applicant through the email address provided in their pleadings after which the Applicant filed an affidavit dated October 28, 2022 in response to the Replying Affidavit.

10. The Respondent submitted that reinstatement of a suit is a matter of judicial discretion and depends on the facts of each case. The Respondent also cited the case of Ivita vs Kyumbu [1984] KLR 441 on the applicable principles to the effect that the test applied by the courts in an application for dismissal for want of prosecution is whether the delay is prolonged and inexcusable and if it is, whether justice can be done despite the delay. Even if the delay is prolonged, if the court is satisfied with the excuse for delay and that justice can still be done to the parties, the action will not be dismissed but it will be ordered that it be set down for hearing at the earliest available time; this is a matter in the discretion of the court.

11. The Respondent argued that the suit together with the Application for injunction was filed on December 3, 2018 and the ruling to the application was delivered on December 18, 2018 and that the Plaintiff preferred an interlocutory appeal and sought stay of proceedings in the High Court but the Court of Appeal did not stay the proceedings herein. Further that the Applicant has filed similar suits in Kajiado HCCC No E004 of 2022 and Kajiado ELC Case No 10 of 2021; that the Applicant is forum shopping in various courts hoping to get desirable order and that no reasonable excuse has been adduced for the delay in prosecuting the suit and therefore justice cannot be done due to such delay. The Respondent urged that the application should be dismissed with costs to the Respondent.

Analysis and Determination 12. I understand the Applicant to be stating that he did not attend court to show cause why this suit should not be dismissed for want of prosecution because it was not served with the Notice to Show Cause. The Applicant in its submissions seems to be arguing that it was it was during the middle of Covid 19 Pandemic and therefore the advocate could not attend court due to restrictions of movement outside the Nairobi Metropolitan. I don’t know which argument the Applicant wants the court to go by.

13. It is true that 2020 was in the thick of Covid 19 but this is not the main argument being advanced here. The main argument is that the Applicant did not receive the Notice to Show Cause. If this court were to take it that failure to prosecute the case was due to Covid 19, it should be remembered that some services, to my recollection including advocates, were categorized as essential services and were allowed movement to the intended destination to attend to duty.

14. I want to consider the argument that the advocates were not served. Did the Applicant satisfy this court that the reason for non-attendance to show cause was because of non-service of the notice?

15. Order 17 Rule 2 provides that: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.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.

16. In this case, the Applicant did not attend court to show cause why the suit should not be dismissed for want of prosecution. He did not therefore show cause. The record shows that from January 16, 2019 when the matter was last in court, the Applicant did not take action in the matter. It was dismissed on July 17, 2020 for want of prosecution. That dismissal gave birth to the application under consideration.

17. Reinstating a suit is a matter of courts discretion. This was addressed by the Court of Appeal in Alex Wainana t/a John Commercial Agencies vs Janson Mwangi Wanjihia(2015) eKLR, the said court set out the principles governing the exercise of discretion and held that: -“The principles governing the exercise of judicial discretion were set out by Ringera JA (as he then was) in the case of Gathiaka vs Nduriri(2004) 2KLR 67. These are that such discretion should be exercised on sound reason rather than whim, caprice or sympathy and with the sole aim of fulfilling the primary concern of the court that is to do justice to the parties before it.”

18. The test to be applied by the courts in an application for dismissal for want of prosecution was established in the case of Ivita v Kyumbu [1984] KLR 441, cited above.

19. The legal basis for dismissal of suits for want of prosecution is the requirement of expediency in the prosecution of cases as provided under Article 159(2) (b) of the Constitution. Equally, Sections 1A and 1B of the Civil Procedure Act gives courts unlimited power to ensure fair and just administration of justice and to economically utilize judicial resources and time.

20. I have considered the Applicant’s argument that it was not served with any notice to show cause why the suit should not be dismissed for want of prosecution and the Applicant’s response that the court did indeed notify parties through email that the matter was fixed for Notice to Show Cause. I have also considered the Applicant’s argument that their advocate had not given out their email address in the Plaint and tasked the Defendant to explain where he got the said email from.

21. I have read the court records. The allegation that they had not provided an email address when filing their Plaint does not hold water. The record shows that the email address is contained in many documents filed by the Applicant in court. The email address being, bernardkalove@yahoo.com, is provided by the advocates for the Applicant and this address is readily available in the file. It cannot be argued therefore that the email address was not provided.

22. Having considered the last time the matter was in court and the date when the suit was dismissed, I am of the considered opinion that the Applicant has not satisfactorily explained the delay in prosecuting the case. To allow a party to sit on his/her rights, taking no action, only to return to court to seek reinstatement of the case after dismissal for want of prosecution and fail to offer satisfactory reasons for lack of acting is an affront to justice and prejudicial to the other party.

23. I have considered the application and the rival arguments. It is my finding that the Applicant has failed to provide reasons, to the satisfaction of the court, why this suit should be reinstated, the sane having been dismissed for want of prosecution. There is a reason why the Overriding Objective exists under Section 1A and 1B of the Civil Procedure Act. There is also a reason why this court should comply with the imperative of the Constitution that justice shall not be delayed.

24. Consequently, the Notice of Motion dated September 15, 2021 is hereby dismissed with costs to the Respondent.

25. It is so ordered.

DATED, SIGNED AND DELIVERED THIS 13TH DECEMBER, 2022. S. N. MUTUKUJUDGE