[2023] KEHC 27221 (KLR)

Transfreight Logistics Limited v Aqua Marine Sealife Co Limited (Miscellaneous Application E011 of 2023) [2023] KEHC 27221 (KLR) (14 December 2023) (Ruling)

Neutral citation: [2023] KEHC 27221 (KLR)

Republic of Kenya

In the High Court at Mombasa

Miscellaneous Application E011 of 2023

DKN Magare, J

December 14, 2023

Between

Transfreight Logistics Limited

Applicant

and

Aqua Marine Sealife Co Limited

Respondent

Ruling

1. This is a Ruling on an Application dated 6th October 2023 2023 seeking to reinstate another Application dated 29th June 2023.

2. The Applicant to be reinstated sought for orders against the Directors of the Respondent to appear in the Lower Court for the purposes of their cross examination on their assets and the avails books f account to facilitate execution of the Judgement obtained by the Applicant in Mombasa CMSS No. 721 of 2021 for Kshs. 2,914,175.

3. The Application is brought under the provisions of Order 12 Rule 7 of the Civil Procedure Rules.

4. The reason is that the suit was dismissed on 30th September 2023 but the matter was not listed and the Advocate was not let into the virtual session.

5. The Respondent filed no response to the Application. Nonetheless, I have to determine the Application on its merits.

Analysis 6. The setting of dismissal orders under order 12 rule 7 of the Civil Procedure Rules is typically a matter of discretion. The Applicant has to demonstrate that the trial court fettered its discretion and acted contrary to justice. This discretion has to be exercised judiciously, as was stated the case of Shah vs Mbogo (1979) EA 116 quoted with approval in the case of John Mukuha Mburu v Charles Mwenga Mburu [2019] eKLR:“......this discretion is intended to be exercised to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake or error, but is not designated to assist a person who has deliberately sought, whether by evasion or otherwise to obstruct or delay the cause of justice.”

7. The wording of order 12 rule 7, requires sufficient cause as a consideration for setting aside a dismissal order for nonattendance.

8. In the case of Wachira Karani v Bildad Wachira [2016] eKLR, the Supreme Court stated that: -“sufficient cause" is an expression which has been used in large number of statutes. The meaning of the word "sufficient" is "adequate" or "enough", in as much as may be necessary to answer the purpose intended. Therefore, the word "sufficient" embraces no more than that which provides a platitude which when the act done suffices to accomplish the purpose intended in the facts and circumstances existing in a case and duly examined from the view point of a reasonable standard of a curious man. In this context, "sufficient cause" means that party had not acted in a negligent manner or there was want of bona fide on its part in view of the facts and circumstances of a case or the party cannot be alleged to have been "not acting diligently" or "remaining inactive." However, the facts and circumstances of each case must afford sufficient ground to enable the court concerned to exercise discretion for the reason that whenever the court exercises discretion, it has to be exercised judiciously"The court in the above case added that while deciding whether there is a sufficient cause or not, the court must bear in mind the object of doing substantial justice to all the parties concerned and that the technicalities of the law should not prevent the court from doing substantial justice and doing away with the illegality perpetuated on the basis of the judgment impugned before it. The test to be applied is whether the defendant honestly and sincerely intended to remain present when the suit was called for hearing. Sufficient cause is thus the cause for which the defendant could not be blamed for his absence. Sufficient cause is a question of fact and the court has to exercise its discretion in the varied and special circumstances in the case at hand. There cannot be a straight-jacket formula of universal application. Thus, the defendant must demonstrate that he was prevented from attending court by a sufficient cause.

9. The Plaintiff had the primary obligation to prosecute the Application and the reason for the absence of counsel and the Plaintiff when the matter was called out for the purpose of the hearing the Application has not sufficiently explained.

10. I say so because, parties have the obligation and duty to assist the court to adjudicate on the matters brought before it expeditiously as was held in Gideon Sitelu Konchella vs Daima Bank Limited (2013) eKLR where the court while citing the case of Mobil Kitale Service Limited vs Mobil Oil Kenya Limited, held that:-“It is in the interest of justice that litigation must be conducted expeditiously and efficiently so that injustice by delay would be a thing of the past. Justice would be better served if we dispose of matters expeditiously ….the overriding objection of this Act and Rules made hereunder is to facilitate the just, expeditious, proportionate and affordable resolution of the civil disputes governed by the Act.

11. I consequently find no merit in the Application. As a parting shot, I need not go into the merit of the dismissed Application because none exists. However, I am at loss why the Applicant could not pursue its intention of executing against the Directors personally vide the lower court that granted the Judgement. The less I say, the better.

Determination 12. In the circumstances, I make the following orders:i.Application dated 6th October 2023 is dismissed.ii.There shall be no order as to costs.

DELIVERED, DATED AND SIGNED AT MOMBASA ON THIS 14TH DAY OF DECEMBER, 2023. RULING DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.KIZITO MAGAREJUDGEIn the presence of:-Ms Buchocho for Mugalo for the ApplicantNo appearance for the RespondentCourt clerk: BrianPage 3 of 3 M.D. KIZITO, J.