Ngong Hills Supermarket Limited v Bidco Oil Refineries Limited [2017] KEHC 10028 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

COMMERCIAL AND TAX DIVISION

CIVIL SUIT NO. 678 OF 2003

NGONG HILLS SUPERMARKET LIMITED....................PLAINTIFF

VERSUS

BIDCO OIL REFINERIES LIMITED..............................DEFENDANT

RULING

1. On 16th July 2015 the court dismissed the suit for want of prosecution.

2. By an application dated 31st March 2017 the plaintiff has asked the court to reinstate the suit.

3. It is the plaintiff’s case that the lawyers who were handling their case at the material time, had failed to keep the plaintiff informed about the status of the case.

4. In the circumstances, the plaintiff asserted that the laxity of its former advocates ought not to be visited upon the plaintiff.

5. As far as the plaintiff was concerned, it moved the court expeditiously, soon after it became aware about the dismissal of the case.

6. On its part, the defendant pointed out that even after the plaintiff had become aware of the dismissal of the suit, the defendant waited for 2 months before it brought the current application.

7. But the plaintiff explained that during the period of the said 2 months, it first changed its advocates, and thereafter the new lawyers brought the application, after they had given due consideration to the court records.

8. In my considered opinion, the lapse of 2 months, from the time when the plaintiff first became aware about the dismissal of the suit, until the time when the plaintiff made an application for the reinstatement of the suit, is not, of itself, inordinate.

9. However, the period of 2 years, preceding the dismissal of the suit for want of prosecution, is definitely substantial.

10. In FRAN INVESTMENTS LIMITED Vs G 4 S SECURITIES LIMITED HCCC No. 467 of 2009, Gikonyo J. expressed himself thus;

“Again, if the Applicant was as vigilant as it claims to be, it is irreconcilable that they discovered the suit had been dismissed on 17th day of February 2014 – four years since the defence had been struck out.  Such delay is not inadvertent as alleged by the Applicant; it is deliberate, as a party is expected to prosecute their cases without delay.  The delay has not been satisfactorily explained and is a source of prejudice to the Respondent as well as to the fair administration of justice.  These are sufficient reasons to refuse to reinstate the suit and let it lie in peace in its judicial grave.  The amount of time which has passed by will not allow any and is not conducive to having a fair trial in this matter”.

11. I do share the same view as expressed above, by my learned brother.

12. The case belongs to the party; not the advocate.  Therefore, when an advocate is said to have failed his client, it is necessary for the court to ascertain if the party had demonstrated the steps he took in the matter.  For instance, if the party wrote to his advocate to inquire about the status of the case, that would be a reflection of the interest which the party had in the matter.

13. Another possible step is the making of inquiries through either phone-calls or through such mediums as “SMS” or Whatsup.

14. Another example of how a party may demonstrate his interest in a case is through communication from his lawyers, through which the party was being informed about the status of the case.

15. In my opinion, if the advocate failed to take steps to prosecute the case, and if the party failed to satisfy the court that he had a keen interest in the prosecution of the case, the court should be reluctant to reinstate a suit which had been dismissed.

16. In this case, the defendant’s advocate has confirmed that the advocates for the plaintiff had severally written to invite him to attend at the court Registry, with a view to fixing a hearing date.

17. My understanding is that when a party invites the other party to attend at the Court Registry, for purposes of fixing a hearing date, the former is expressing an interest in the case.  No party can invite the opposite party to fix a hearing date if he was not interested in pursuing the case.

18. However, when the party who sent out the invitation, then failed to attend at the Registry to fix the hearing date, unless he had a good explanation for his failure to attend, he may be construed as not having a genuine desire to fix a hearing date.

19. But then again, once a party has been invited to attend at the registry, to fix a date for hearing, he does not have to walk away without a date, just because the other party did not attend.  Provided that there is proof that both parties were aware of the date and time when they were to attend at the registry, the court can proceed to fix a date, notwithstanding the absence of one of the parties.

20. In this case, the case was dismissed on 16th July 2015.  Thereafter, the defendant received an invitation dated 30th September 2015, asking him to attend at the registry, for the purposes of fixing a hearing date.

21. I accept the plaintiff’s contention that if he had known that the suit had already been dismissed, it would not have made any sense for it to invite the defendant to fix a hearing date.

22. During the 2 year period, before the suit was dismissed, the plaintiff’s advocates were not dormant.  As the defendant confirmed to this court, it received letters dated 10th January, 2013 and 26th February, 2015 inviting them to attend at the registry, so that hearing dates could be fixed.

23. As its advocates were involved in communication with the defendant’s advocates during the 2 years preceding the dismissal of the suit, there would have been no need for the plaintiff to undertake any other of further steps in the case.

24. I am satisfied that the actions of the advocates for the plaintiff, in writing to the defendant’s advocates, can be deemed to have been the actions of the plaintiff.  Therefore, the plaintiff did not need to offer any further explanation for apparently failing to take steps between 31st July 2012 and 16th July 2015.

25. I am alive to the fact that this case was filed in 2003, which is almost 14 years ago, now.

26. When there is a delay in the prosecution of a case, there is a possibility that the memories of witnesses will fade, and that, therefore, the fair trial of the case may be hampered.

27. However, I find no basis for holding that, in the circumstances of this case, the delay has been so inordinate that it would be virtually impossible to have a fair trial.

28. This case is founded upon a written contract, and both parties have indicated that the primary source of their respective evidence, is documents. Therefore, I find that the passage of time would not be so prejudicial to either of the parties, as to deprive them of a fair trial.

29. In the circumstances, I find merit in the application dated 31st March 2017.  Accordingly, set aside the dismissal of the suit, and now order that the suit be and is hereby reinstated.

30. As regards the costs of the application, the same shall, in any event, be borne by the plaintiff.  In other words, the defendant is awarded the costs, notwithstanding the fact that the application by the plaintiff is successful.  I so hold because the defendant cannot be held responsible for the omissions attributable to the plaintiff and to the plaintiff’s advocates.

31. The dismissal of the suit was ordered because the court was satisfied that the plaintiff had failed to prosecute its case for over 2 years.

32. The application which has resulted in the reinstatement of the suit was brought about by the first failure, on the plaintiff’s part.  Therefore, although the court has given to the plaintiff another chance to prosecute its case, the defendant cannot be burdened by the steps which the plaintiff has had to take to remedy its own failure.

DATED, SIGNED and DELIVERED at NAIROBI this3rd day of November 2017.

FRED A. OCHIENG

JUDGE

Ruling read in open court in the presence of

No appearance for the Plaintiff

Miss Kabage for Chacha Odera for the Defendant

Mr. C. Odhiambo, Court clerk.