[2017] KEHC 1899 (KLR)

REPUBLIC OF KENYA-

IN THE HIGH COURT OF KENYA AT NAIROBI

COMMERCIAL AND ADMIRALTY DIVISION-MILIMANI

CIVIL CASE NO.429 OF 2008

UNIQUE DISTRIBUTERS LTD………………………...PLAINTIFF

VERSUS

THE HONOURABLE ATTORNEY GENERAL…..1ST DEFENDANT

BENSON MBENI KIBETU………………………2ND DEFENDANT

JOHN WILLY KARIUKI KANY………………….3RD DEFENDANT

JOSEPH MISATI GESORE……………………...4TH DEFENDANT

R U L I N G

This is a ruling on application dated 13th September 2017 filed by the 1st Defendant herein seeking to set aside exparte proceedings and be allowed to participate in these proceedings. The 1st Defendant further seeks leave to amend defence in accordance with further amended defence.

Grounds on the face of the application are that:-

The 1st Defendant did not participate in the proceedings herein for reason that there was a mix up in the office of the Attorney General as to which department had the conduct of these proceedings.0

That Civil Litigation Department filed Memorandum of Appearance and Statement of Defence on 4th September 2008 and on 3rd October 2014 the file was forwarded to Registrar General Department for dealing.

That the file was inadvertently filed away with files under lock and key until 1st September 2017 when the Registrar of Companies discovered while taking inventory of the files. That the 1st Defendant is the custodian of the company’s records and participation in these proceedings is crucial owing to the nature of pleadings.

That the 1st Defendant intends to amend the defence to conform to the amended plaint to enable Court to determine real issues in controversy.

That no prejudice will be occasioned to any party if orders sought are granted.

That failure to stay proceedings will render the amended defence nugatory.

The application is supported by the Affidavit of Gachuki Hiram Advocate. He reiterated the grounds of opposition

In response the Plaintiff filed a Replying Affidavit sworn by Simon Mukiri a director of the Plaintiff. He averred that the Defendant has always been unwilling to participate in this suit and that the 1st Defendant had a chance to amend the defence especially when served with amended plaint but slept on its right and was awaken when served with Plaintiffs written submissions. He averred that the 1st Defendant has always been served with Court documents inviting them to fix the matter for hearing and has been informed of the hearing dates. He averred that the 1st Defendant were obliged to enquire about the file as they received Court documents. He submitted that a Counsel for the 1st Defendant attended Court when the matter was listed for dismissal and supported the dismissal. He gave chronology of history of this matter from the time it was filed to show that the Defendant has been involved in every stage of proceedings including the hearing notice of 12th June 2017. He averred that it is after service of the Plaintiffs written submissions when the Defendant decided to file the current application.

Parties herein filed written submissions and highlighted on 13th October 2017. Counsel for the applicant restates the grounds for the application. He submitted that no injustice will be occasioned to the Plaintiff if the prayers sought herein are granted and that amendment of defence will assist the Court in determining this suit.

In response Mr.Ongegu for Plaintiff submitted that the Court has indulged the 1st Defendant more than 20 times to enable them put their house in order. He submitted that at some point Justice Ogola even summoned the Solicitor General to come and explain why they were not prosecuting this suit. He submitted that the Plaintiff stand to suffer prejudice if the proceedings are set aside.

In response the 1st Defendant argued that amendments can be done at any stage of the trial and that the Plaintiff has not demonstrated prejudice that is likely to be occasioned.

I have considered rival arguments herein. I wish to consider whether the 1st Defendant has given sufficient explanation to warrant setting aside Exparte proceedings and allow amendment of defence. On perusal of the Court record, I note that this matter has been pending in Court for about 9 years now.1st Defendant failed to attend Court on most of the dates the a matter was scheduled either for mention, pretrial or hearing.

On 10th February 2017 when the matter came up for Notice to Show Cause, there was representation on part of the 1st Defendant. They cannot therefore be right in saying that they learnt of the matter at the submission stage during audit of files. After setting aside the notice to show cause the 1st Defendant failed to attend Court for case management conference nor for hearing thereafter. On both occasions, Affidavit of Service filed showed that the1st Defendant was served.

The Plaintiff testified and closed its case. I do not see sufficient explanation for failure to participate by the 1st Defendant. I have however perused the annexed amended defence and note that 1st Defendant has custody of the records relating to this matter. There is no doubt that 1st Defendants participation in these proceedings will assist the Court in arriving at a more informed decision. I therefore find it appropriate to reopen the case for cross examination of PW1 by 1st Defendant. I also allow the 1st Defendant to amend defence as per draft amended defence annexed to the application. The above order is allowed on condition that the 1st Defendant pays thrown away costs of Kshs. 30,000 to Plaintiff within 30 days from the date of delivery of this ruling; failure which the case proceeds from where it had reached.

Dated and Delivered at Nairobi this 15th day of November 2017

……………………

RACHEL NGETICH

JUDGE

IN THE PRESENCE OF

……………………….…………. COURT ASSISTANT

………COUNSEL FOR PLAINTIFF/RESPONDENT

……… COUNSEL 1ST DEFENDANT/APPLICANT