Galsheet Kenya Limited v Kayam Chatur & Sultan Hardware Limited [2015] KEHC 2579 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL CASE NO.  526 OF 1999

GALSHEET KENYA LIMITED ……….………….............................……….PLAINTIFF

VERSUS

KAYAM CHATUR ……….……………………......................……… 1ST DEFENDANT

SULTAN HARDWARE LIMITED …………….............................…. 2ND DEFENDANT

RULING

This ruling determines the defendant/applicant’s application dated 26th January 2015 seeking to dismiss this suit for want of prosecution with costs to the defendants.

The application is predicated on the grounds that  the suit was  instituted on 1999 and that  it was last in court  on 20th September 2011  for mention  when it  was stood  over generally  and ever since  10th May 2012  when  it was meant  to be mentioned  but not  listed, no action has  been taken  which delay  is inordinate  inexcusable  and denies  the defendant  a fair trial on the issues  in the action, which continued  pendency of   the suit  is prejudicial to the defendant hence  it is in the interest  of  justice that  the suit be dismissed  of want of prosecution as the plaintiff  has abused the court process.

The application is also supported by  the affidavit  of James Rimui  advocate sworn on 26th January 2015  emphasizing   that the plaintiff has lost interest  in the suit since  there is no explanation why it  has taken them that long to have this suit prosecuted hence  it is only fair and  just that  the suit be dismissed for want of prosecution.

The plaintiff opposed the application and filed an affidavit sworn by  Alex Ngatia  Thangei on 1st April  2015  averring that the matter   was last in court on 20th September  but that  they did  on 1st December  2011, 13th June 2012 and 16th November  2012  invite the defence  counsels to  fix mutually convenient  dates  for the hearing of the suit.  Further, that the last date taken was 10th May 2012 but the matter was not listed.  It is  also deposed  that court diary  was full in 2012  causing  delay  and that the  plaintiff  has complied  with all pre-trial requirements  and has written  to the Deputy Registrar on 27th February 2015 seeking  a mention date for  pre-trial  conference  when they  were served  with this  application  yet the defendants  had not complied with pre-trial  requirements  and has instead, since  2008 sought vide various applications  to dismiss   the plaintiff’s suit.  It is further deposed that the plaintiff had not lost interest in his case and no prejudice will be suffered if the matter proceeds to full hearing.

The parties urged their respective positions orally on 16th June 2015 with Mr Rimui advocate representing the defendant/applicant and Mr Thangei advocate representing the plaintiff/respondent.

Mr Rimui submitted that the suit had been instituted in 1999 and it now 16 years yet no steps had been taken to have it prosecuted.  Further, that  since 2008 the defendant  had been  taking steps  to have the  suit dismissed  but their applications  were either compromised  or withdrawn  and that on 20th September 2011 parties  agreed to  have their suit disposed  of expeditiously   but to date  the plaintiff  had made no efforts to have the suit disposed  of.  Counsel further submitted that no action was taken in 2013 and 2014 to set down the suit for hearing.  He  urged the court to find  that  the plaintiff’s  conduct  of inaction  did not  entitle  them discretion  of the court    and urged the  court to dismiss the suit for want of prosecution.

Mr Thangei submitted in opposition to the application, relying   on his replying affidavit that the age of the suit did not matter.  Instead, that what was material was the last attempts made by the plaintiff.  In his view, there is no inordinate or inexcusable delay caused by the plaintiff that cannot be compensated by an award of costs.  He maintained   that they  made attempts  to have the  suit  heard in 2012 but were unsuccessful  and that  prior to this application  being filed, they had filed witness statements and pre-trial questionnaire on 27th February 2015  and  by letter  filed with  the Deputy  Registrar  on 27th February 2015  asked the  Deputy Registrar to fix  a mention date for pre-trial  conference   which in his view, were  sufficient  steps  to have the case  heard and determined.

On  the test for delay, he relied on HCC 114/2006 Communications Carier  Ltd and  Communication Carrier Satellite  Services Ltd vs Telcom (K) and Ivita V Kumbu (1984) KLR 441.  He urged  the court to  consider  Constitutional principles  that substantive  justice  should  be  done to  both parties  proportionately, invoking  the overriding  objectives  of the Civil Procedure Act.  He also submitted that the defendants had not demonstrated that they had been ready to be heard but stopped by the indolence of the plaintiffs.

Mr Thangei also relied  on HCC 1744/2000 Samuel M. Njuguna  and Others V Theta Tea Factory  where the court held  that courts  should be slow  to dismiss suits  for want of prosecution  without  giving  the plaintiff  an opportunity to be heard unless the court is satisfied  that the default has  been intentional and contumelious   and that  there  has been prolonged  or inordinate  and inexcusable  delay  on the part  of the plaintiff or  his lawyers  and that such delay  will give rise to a substantial risk that  it is  not possible  to have  a fair trial  of  the issues  in the  action or is  such as is likely  to cause  or  to have caused  serious prejudice to the defendants either  as between  themselves  and the  plaintiff or between each other  or between them and a third party.

Mr Thangei also urged the court not  to be poisoned by the previous application by the defendants  to have  this suit dismissed  for  want of prosecution  as they  were compromised  or withdrawn on a without  prejudice basis  and that  presently the plaintiff was  ready  to set down the matter for  hearing.

In a brief  rejoinder, Mr Rimui  submitted that the delay  was not only  inordinate  but inexcusable  as no reasonable grounds  had been  given for  failure to set down  the suit  for trial.  He also  submitted  that they were never served with witness statements  and that the authorities relied on by the plaintiff were persuasive  not binding  on this court  hence this  court must  consider  the reasons  for the delay as  was the case  in the cited  cases  unlike in the instant case where no excuse  or explanation  for not fixing the case  for hearing  since 2012  was given.

Counsel for  the defendant  argued that  there  was no duty  placed on the defendant  to take any steps  to set the suit  down for hearing as it was the plaintiff’s suit and that the  application to dismiss the  suit for  inaction by its initiation was the appropriate  way of  moving the court.

I have carefully considered the application herein, the responses and   submissions together with decided cases.  The brief history of this suit must be given to lay a basis for the decision that I am just about to render.

The suit  was instituted  on 16th March 1999  by the plaintiff  Galsheet (K) Ltd against Kayam Chatur and Sultan Hardwares Ltd praying  for judgment  for USD 107,285. 33 or its  equivalent  in Kenyan currency, interest  and costs being alleged balance  of the agreed price  of  goods  sold  and delivered  to the defendants at their order  and request  in Nairobi between 1996 and 1997.

The defendants entered appearance on 30th April 1999 and filed defence on 13th May 1999.

On 11th June 1999, the plaintiff filed  an  application seeking  judgment on admission  but were unsuccessful and  on 16th January 2002 they filed an application  seeking that the defendants furnish  security  or costs.

On 2nd April 2002 the defendants filed an application for dismissal of the plaintiff’s suit for want of prosecution.  On 28th October 2004 the plaintiff sought to amend the plaint.  In the meantime, there were change of advocates.

On 9th January 2008 the defendants again sought  dismissal  of the suit  herein  for want of  prosecution. On 17th September  2009  the plaintiff filed  list of documents  and on 19th April 2011 the defendants  again filed an application  to dismiss  this suit  for  want of  prosecution.

The application for judgment  was  withdrawn  by consent  and  pre-trial ordered  to be complied  with  in 30 days  from 30th July 2002.  The application for amendment to the plaint was granted with corresponding leave to the defence to amend their defence within 14 days on 1st February 2005.

The application for security for costs was dismissed on 7th February 2002 by Kuloba J.  The 1st application for dismissal of suit for want of prosecution was withdrawn by consent on 17th April 2008.  The second one was also withdrawn by consent on 13th July 2011.

The present application was filed  on 12th March 2015 predicated on Order  17 Rule 2(3) Order  51 Rule 1  of the Civil Procedure  Rules  and Sections 1A,1B and 3A of the Civil Procedure  Act and all other enabling  provisions  of the law.

Under Order 17 Rule 2 of the Civil Procedure Rules.

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 to obtain expeditious hearing of the suit.

Any party to the suit may apply for it dismissal as provided in Sub Rule 1.

The defendant’s application is therefore brought under Order 17 Rule 2 Sub rule 3 as read with Sub rule (1) and (2) of Rule 2 above.

It is therefore expected that the  defendant satisfies this court that  no steps or other party (defendants) for one year  to the date of filing of this application to dismiss  the suit  for want of prosecution  and that  no cause is shown to the satisfaction  of the court why the  suit cannot   be dismissed  for want  of prosecution to warrant  granting  of the orders sought herein.

From the record exposed above, the defendant has been very active in pushing for dismissal of this suit for want of prosecution.  This application is the third attempt to do so.

The issue for determination from the above exposition is, whether the applicant has satisfied the conditions for dismissal of this suit for want of prosecution.

The record  shows that this suit  came up  for hearing on 20th September  2011  before Mwera J ( as  he then was ) and was stood over generally  as there  was a settlement  and pre-trial  requirements  as per the 2010 Civil Procedure Rule had not  been fulfilled.

Thereafter,  the plaintiff’s counsel  fixed  the suit for hearing  on 10th May  2012 but  as deposed  by the plaintiff’s  counsel, Mr Thangei, the matter  was not listed. The record then shows that on 16th November  2012  the  plaintiff  invited  the defence  counsel  to attend  the registry  for purposes  of fixing a  mutually  convenient date on   23rd January 2013.  The whole of 2013  and 2014  went without action and on 27th February  2015, the plaintiff’s counsel  filed witness statements together  with  a pre-trial questionnaire  in compliance with the requirements  of Order  11 of the Civil Procedure Rules.  On the same date, the plaintiff’s counsel wrote to the Deputy Registrar of the High Court asking for a mention date to fix pre-trial conferencing.  Thirteen  days later, the  defendant filed this  application dated 26th January 2015 on 12th March  2015  seeking  to have  the suit herein dismissed  for want of prosecution .

Indeed, this is a case of the hunter being hunted by the hunted with all the arsenals at the latter’s disposal.

In my view, this application is premature and does not meet the threshold of the provisions of Order 17 Rule 2 of the Civil Procedure Rules.  The defendant had to show that no application had been made or step taken for one year   before seeking to hunt down the plaintiff.  In this case, the plaintiff had taken active  and necessary steps  on 27th February 2015  to comply  with pre-trial requirements  under Order  11 of the Civil Procedure Rule and  had even sought a date  for pre-trial  directions which was a step  in the right  direction to ready the suit  for hearing.

Albeit  the defendant  denies  receiving  the pre-trial questionnaire  filed by the plaintiff and the  witness statement, that is a matter that  would have  been considered  by the court  on a mention  date when considering  whether  all the parties  had complied  with the pre-trial requirements  of Order 11 of the Civil Procedure Rules  since there  could have been no  trial by ambush.

In addition, as the plaintiff  had filed those documents  and letter  which were on record, the  defendants are  expected  to have seen them  on the file when they lodged their present application and  thereby withhold  the filing of  their application  herein.

The above being the  factual position  of this matter, I would  not belabour  discussing  issues  of delay since it is apparent  that the suit was filed in 1999 and there are  reasons  on the face of the record  for the  delay including  the various  interlocutory  applications  and no-compliance   with pre-trial  requirements  before attempting  to set down the  suit for hearing.

For  the above reasons, I am  unable  to exercise  my powers  under Order  17 Rule 2 of the Civil  Procedure  Rules  to dismiss  this suit  for a want  of prosecution as it has not been shown  to the satisfaction  of this court  that there  has been default which has been intentional  and contumelious  or that there  has been prolonged  or inordinate  and inexcusable  delay on that part  of the plaintiff for his lawyers in setting down this matter for trial.  (see Halbury’s Laws of England VOL 37 paragraph 448).

In my view, to dismiss this suit  as urged  would be  exercising  jurisdiction which has not  crystallized  and in the process dispossess the plaintiff   the right to  a fair hearing and hence  bar  it  from accessing  justice therefore, ousting  them from the  seat of justice.  The right to a fair hearing cannot be limited.(see Art 25 of the Constitution).

It is guaranteed under Article 50(1) of the Constitution.  On the other hand, the right to access justice cannot be impeded unnecessarily, being a protected and guaranteed right under Article 48 of the Constitution.

This court  is conscious   of the new  constitutional  imperatives under Article 159(2)(b) of the Constitution that justice  shall not be delayed but is  quick to point out  that in this particular  instance, it has not  been shown to the satisfaction of the  court that  there has been such deliberate  delay with  the intention of causing  serious prejudice  to the defendants.  The defendants have not demonstrated what prejudice if any would be occasioned to them if the suit herein is not dismissed.  If anything  I find that it is the plaintiff  who stands  to suffer loss if this suit , which claim  is substantial-nearly  ten million  is dismissed  without  according  the plaintiff  an opportunity  to be heard on merits.

For the foregoing reasons, I decline to dismiss this suit and dismiss the application dated 26th January 2015.

To ensure  that this  matter  is not archived  in any way  since it has been before this  court long enough  and forms  part of the infamous  backlogs, I direct  that the parties thereto  comply with all the pre-trial requirements  within  45 days  from the date  of this ruling.

I further direct that pre-trial directions shall be given on 23rd November 2015 upon compliance with the pre-trial requirements under Order 11 of the Civil Procedure Rules.  Any defaulting party shall be liable to a charge of kshs 15,000 to be paid into court.

I order each party to bear their own costs of the application herein.

Dated, signed and delivered in open court at Nairobi this 22nd day of September 2015.

R.E. ABURILI

JUDGE

22. 9.205

Coram R.E. Aburili J

C.A. Adline

Mr Mayende holding brief for Rimui for defendant/applicant

No appearance for respondent

(date was given in court on 16th June 2015)

Court- Ruling read and delivered in open court as scheduled.

R.E. ABURILI

JUDGE

Court- Pre-trial direction on 23rd November 2015.  The defendant’s counsel to issue notice to the plaintiff’s Counsel.

R.E. ABURILI

JUDGE

22. 9.2015