Oxygen 8 East Africa Limited v Keycorp Real Advisory Limited [2022] KEHC 10328 (KLR)

Oxygen 8 East Africa Limited v Keycorp Real Advisory Limited (Civil Case E113 of 2019) [2022] KEHC 10328 (KLR) (Commercial and Tax) (19 May 2022) (Ruling)

Neutral citation: [2022] KEHC 10328 (KLR)

Republic of Kenya

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

Commercial and Tax

Civil Case E113 of 2019

WA Okwany, J

May 19, 2022

Between

Oxygen 8 East Africa Limited

Plaintiff

and

Keycorp Real Advisory Limited

Defendant

Ruling

1. Sometime in April 2019, the plaintiff sued the defendant seeking, inter alia, judgment for the sum of Kshs. 612,306,077. 60 and damages for breach of contract. This ruling is however in respect to the application dated 19th February 2021 wherein the defendant seeks the dismissal of the suit for want of prosecution.

2. The application is supported by the affidavit of by the Mr. John Odera Were and is based on the following grounds:-a.That this suit was lodged in court on 2nd May 2019. b. That from that time the Plaintiff has never taken any step or action to ensure that this matter is set for hearing.c. That the Plaintiff has failed even to comply with Order 11 of the Civil Procedure Rules.d. That it is only fair and just to allow this Application since it seems that the Plaintiff is no longer interested in pursuing this matter.e. That the Defendant has a strong Defence to the Claim herein and should not be kept in indefinite abeyance.f. That it is in the interest of justice that this Application be allowed.

3. The plaintiff opposed the application the replying affidavit of it Chief Executive Officer Dr. Joan Mwaura who concedes that there has been a delay in progressing the matter to hearing after it last came up in court for case management of 3rd March 2020. She however attributes the delay to the Covid 19 pandemic that led to lockdowns and downscaling of the judiciary in dealing with the cases. She further states that the plaintiff has been undergoing a restructure while its director and key witness has been out of the country. She further states that the delay in prosecuting the case is not inordinate and adds that the plaintiff is ready and willing to list the case for hearing.

4. I have considered the application, the plaintiffs’ response, the submissions made by the parties’ respective counsels. The main issue for determination is whether the defendant has made out a case for striking out the plaintiffs’ suit for want of prosecution.

5. Order 17 Rule 2 of the Civil Procedure Rules stipulates thus:-“(1) 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;(2) If cause is shown to the satisfaction of the court, it may make such orders at it thinks fit to obtain expeditious hearing of the suit;(3) Any party to the suit may apply for its dismissal as provided in sub-Rule (1);(4)The court may dismiss the suit for non-compliance with any direction given under this order.”

6. From the above provision, it is clear that an application for dismissal for want of prosecution may be brought upon the lapse of one year from the time the matter was last in court.

7. In the case of Ivita vs Kyumba[1984]KLR 441, it was held that: -“The test applied by the courts in the application for dismissal of a suit for want of prosecution is whether the delay is prolonged and inexcusable, and if it is, whether justice can be done despite the delay. Thus, even if the delay is prolonged, if the court is satisfied with the Plaintiff’s excuse for the delay, and that justice can still be done to the parties, the action will not be dismissed nut it will be ordered that it be set down for hearing at the earliest time. It is a matter of and in the discretion of the court.”

8. In Invesco Assurance Co. Ltd vs Oyange Barrack [2018]eKLR, the court stated as follows regarding the exercise of discretion:-“11. Nonetheless, Article 159 of the Constitution and Order 17 Rule 2(3) gives the court the discretion to dismiss the suit where no action has been taken for one year and on application by a party as justice delayed without explanation is justice denied and delay defeats equity. That discretion must be exercised on the basis that it is in the interest of justice, regard being had to whether the party instituting the suit has lost interest in it, or whether the delay in prosecuting the suit is inordinate, unreasonable, inexcusable, and is likely to cause serious prejudice to the defendant on account of that delay.”

9. In George Gatere Kibata vs George Kuria Mwaura & another[2017] eKLR, the court held that: -“My understanding of the framework contained in Order 17 Rule 2 is that a court may suo moto dismiss a suit for want of prosecution. Within the same framework, the court may dismiss a suit on the same ground on the application of either party to the suit.9. Besides the legal framework set out in Order 17 Rule 2, the guiding criteria to be applied in considering whether or not a suit should be dismissed for want of prosecution has been articulated and settled in a number of leading authorities, among them, the case of Ivita vs. Kyumbu (1984) KLR 441 where it is summarized as follows:“The test is whether the delay is prolonged and inexcusable and, if it is, can justice be done despite such delay.””

10. In the instant case, it was not disputed that the case was last in court on 3rd march 2020 when it came up for a case management. It is therefore clear that one year has lapsed since the plaintiff made any steps in prosecuting the case. The plaintiff explained that Covid 19 pandemic contributed to scaling down of cases before the court thereby delaying the hearing of this case.

11. This court takes judicial notice of the fact that court operations slowed down following the advent of the Covid 19 pandemic that led to lockdowns and that in some instances, only urgent matters were heard electronically. I find that the plaintiff has satisfactorily explained the delay.

12. I further find that dismissing the plaintiff’s suit at this stage will not serve the interest of justice as it has expressed its readiness to prosecute the case.

13. For the above reasons, I decline to grant the orders sought in the instant application, which I hereby dismiss with no orders as to costs. I direct that the suit be set down for hearing within 30 days from the date of this ruling.

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 19THDAY OF MAY 2022. W. A. OKWANYJUDGEIn the presence of:Mr. Angwenyi for the Plaintiff.Ms Awanda for Were for DefendantCourt Assistant- Sylvia