[2021] KEELC 4257 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT ELDORET

ELC NO. 375 OF 2015

VINCENT AMOLO AMBANI T/A

FAST TRACK INVESTMENTS.......................PLAINTIFF/ RESPONDENT

VERSES

NATIONAL BANK OF KENYA LTD...............DEFENDANT/ APPLICANT

RULING

This ruling is in respect of a notice of motion dated 24th June 2019 by the defendant applicant seeking for the reinstatement of the counterclaim which was dismissed for non-attendance on 30th January 2019

This matter came up for hearing on 17th October 2019 whereby counsel for the Plaintiff/ Respondent made an oral application to withdraw the Plaintiff/ Respondent’s claim with no orders as to costs in the presence of an Advocate who was holding brief for counsel for the Defendant/ Applicant. The application for withdrawal of the suit was not opposed and as such the Court allowed the same and slated the hearing of the Defendant/ Applicant’s counterclaim on 31st January, 2019.

On 31st January 2019, this matter came up for hearing in the absence of representation for the Defendant/ Applicant and counsel for the Plaintiff/ Respondent made an application to have the Defendant/ Applicant’s counterclaim dismissed for non-attendance which application was allowed by the Court.

Counsel for the defendant applicant stated that during the month of November 2019, the Advocate who was handling this matter on behalf of the Defendant/ Applicant left the employment of the firm on record for the Defendant/ Applicant but he inadvertently failed to put the date in the diary and to conduct a proper hand over exercise of this matter. That as a result, the firm was not aware that this matter was scheduled for hearing on 31st January, 2019 as is evidenced in the master diary and the diaries of the Advocates who work at the firm.

Counsel urged the court to allow the application as prayed

The plaintiff respondent opposed the application and submitted that the reasons advanced are not plausible to warrant the reinstatement of the counterclaim.

ANALYSIS AND DETERMINATION

In applications for reinstatements of suits, the court must look at whether there was inordinate delay in bringing the application and whether the applicant has advanced good reasons for non-attendance when the matter was scheduled for hearing. The other issue is whether the reinstatement will cause prejudice to the respondent.

In the case of John Nahashon Mwangi v Kenya Finance Bank Limited (in Liquidation) [2015] eKLR the court laid down the principles for reinstatement of dismissed suits and held that:

“The fundamental principles of justice are enshrined in the entire Constitution and specifically in Article 159 of the Constitution. Article 50 coupled with article 159 of the Constitution on right to be heard and the constitutional desire to serve substantive justice to all the parties, respectively, constitutes the defined principles which should guide the court in making a decision on such matter of reinstatement of a suit which has been dismissed by the court. These principles were enunciated in a masterly fashion by courts in a legion of decisions which I need not multiply except to state that; courts should sparingly dismiss suits for want of prosecution for dismissal is a draconian act which drives away the plaintiff in an arbitrary manner from the seat of judgment. Such acts are comparable only to the proverbial ‘’Sword of the Damocles’’ which should only draw blood where it is absolutely necessary. The same test will apply in an application to reinstate a suit and a court of law should consider whether there are reasonable grounds to reinstate such suit-of course after considering the prejudice that the defendant would suffer if the suit was reinstated against the prejudice the Plaintiff will suffer if the suit is not reinstated.”

The applicant has given an explanation as to why they did not attend court on the day the matter was scheduled for hearing. The explanation is plausible and therefore it would be in the interest of justice not to lock the applicant from the seat of justice.

The Defendant/ Applicant’s counterclaim was dismissed on 31st January 2019 and the application for reinstatement was filed on 24th June 2019. Would 5 months amount to inordinate delay? In the case of UTALII TRANSPORT COMPANY LIMITED & 3 OTHERS VS. NIC BANK LIMITED & ANOTHER [2014] eKLR held thus;

“Whereas there is no precise measure of what amounts to inordinate delay. And whereas what amounts to inordinate delay will differ from case to case depending on the circumstances of each case; the subject matter of the case; the nature of the case; the explanation given for the delay; and so on and so forth. Nevertheless, inordinate delay should not be difficult to ascertain once it occurs; the litmus test being that it should be an amount of delay which leads the Court to an inescapable conclusion that it is inordinate and therefore, inexcusable. On applying Court’s mind on the delay, caution is advised for Courts not to take the word ‘inordinate’ in its dictionary meaning, but in the sense of excessive as compared to normality.”

In computation of time to ascertain whether there was inordinate delay, courts should not construe inordinate and take the ordinary dictionary meaning of inordinate as was held in the UTALIIcase above. The court should look at the circumstances of the case, the explanation given and the bigger picture of administering justice. One day can be termed as inordinate delay and one year can be construed not to be inordinate delay.

In the case of BURHANI DECORATORS & CONTRACTORS V MORNING FOODS LTD & ANOTHER [2014] eKLR the court held that:

“I have also asked myself whether failure to attend court on 23rd May 2012 by both the appellant and their advocates constituted an inadvertent excusable mistake, an error of judgment regarding failure by the advocates law firm to diarize the hearing dates as required or whether it was meant to deliberately delay the cause of justice. I have further considered whether the filing of the application for setting aside the dismissal order, 3 months after the said order was made constituted inordinate delay.

To decide on the questions posed above, I am enjoined to look at the case ofBelinda Murai & Others – Vs – Amos Wainaina [1978] KLR 278 per Madan JA(as he then), cited with approval in theNyeri CA 18/2013 (supra), where he described what constitutes a mistake in the following terms:

“A mistake is a mistake. It is no less a mistake because it is an unfortunate slip. It is no less pardonable because it is committed by senior counsel. Though in the case of junior counsel the court might feel compassionate more readily. A blunder on a point of law can be a mistake. The door of justice is not closed because a mistake has been made by a lawyer of experience who ought to know better. The court may not condone it but it ought certainly to do whatever is necessary to rectify it if the interests of justice so dictate.”

“It is well known that courts of law themselves make mistakes which is politely referred to as erring in their interpretation of laws and adoption of legal point of view which courts of appeal sometimes overrule…”

In my considered view, therefore, the learned Chief Magistrate misapprehended the reasons given by the appellant and their advocates for non-attendance which arose as a result of a mistake and which mistake was apparent from the affidavits and annexures thereto”.

Similarly, the issue to be addressed is whether the reinstatement will cause prejudice to the respondent. If there is any prejudice caused to the respondent, then the same can be compensated by an award of costs.

I have considered the application, the submissions by counsel and the relevant authorities and come to the conclusion that the application has merit. Applicant to fix the case for hearing within 30 days’ failure to which the order lapses.

DATED and DELIVEREDatELDORETthis 4th DAY OF FEBRUARY, 2021

M. A. ODENY

JUDGE