Esperia Tourism Development Investments Limited & another v Chul & 10 others [2022] KEHC 11923 (KLR)

Esperia Tourism Development Investments Limited & another v Chul & 10 others (Civil Case E428 of 2019) [2022] KEHC 11923 (KLR) (Commercial and Tax) (21 July 2022) (Ruling)

Neutral citation: [2022] KEHC 11923 (KLR)

Republic of Kenya

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

Commercial and Tax

Civil Case E428 of 2019

WA Okwany, J

July 21, 2022

Between

Esperia Tourism Development Investments Limited

1st Plaintiff

Lucy Wanjiku Gathua-Khor

2nd Plaintiff

and

Shin Hyuk Chul

1st Defendant

Li Dahai

2nd Defendant

Wang Li Na

3rd Defendant

Kim Jong Youl

4th Defendant

Pan Sijia

5th Defendant

Zhang Xiu Cheng

6th Defendant

Mogg Yun

7th Defendant

Paul C. Onduso

8th Defendant

Makori James Torore

9th Defendant

The Registrar of Companies

10th Defendant

The Betting Conrol & Licensing Board

11th Defendant

Ruling

1. The defendants filed the application dated October 4, 2021 seeking the dismissal of the plaintiff’s suit for want of prosecution.

2. The defendant’s case is that the plaintiffs have not taken any steps to respond to the defendants’ statement of defence or take any action in the matter for a period over 2 years.

3. The plaintiffs opposed the application through the replying affidavit of the plaintiff’s counsel, Mr Kibe Mungai who attributes the delay in prosecuting the case to the disruption caused by the Covid 19 pandemic. According to the plaintiffs, the pandemic contributed to the inefficiencies in the management of court matters due to court closures, loss of diarized dates and incapacity to track files in chambers due to reduction in staff.

4. The plaintiffs state that the delay in prosecuting the case is not inordinate, is excusable and can be remedied by an order for expedited hearing and disposal of the suit on priority basis.

5. I have considered the reasons advanced by the plaintiffs’ for the delay in prosecuting the case. The law is clear that a suit which has been inactive for a period of 1 year may be dismissed for want of prosecution.

6. In the present case, it is not disputed that the suit had been inactive for a period of close to 2 years as at the time the instant application was filed.

7. The court takes judicial notice of the fact that Covid 19 pandemic led to the disruption and in some instances, shut down of court operations. Indeed the pandemic affected different organization in different ways and one cannot therefore doubt the plaintiffs’ advocates averment that the operations in their chambers were affected during the said period.

8. Be that as it may, not all delays can be blamed on the pandemic considering the fact that court operations have almost been normalized through the innovative virtual proceedingS and the introduction of e-filing system.

9. The court also takes cognizance of the adage that mistakes by counsel should not be visited in the client. This is to say that the lapse or failure by the plaintiffs’ advocates to act on the case on time should not affect the plaintiffs’ right to be heard on the merits of their case.

10. It is for the above reasons that I find that it will serve the interest of justice to resists the invitation to dismiss the suit for want of prosecution, but with a rider that the plaintiffs shall list the suit for pre-trial directions within 30 days from the date of this ruling, failure of which the suit shall stand dismissed for want of prosecution.

11. I ward the costs of this application to the defendants.

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 21STDAY OF JULY 2022. W. A. OKWANYJUDGEIn the presence of: -Mr. Onindo for the DefendantsMr. Keru for Kibe Mungai for Plaintiffs/RespondentCourt Assistant- Sylvia