Sentrim Hotels Ltd v County Council of Narok [2017] KEHC 2180 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAROK

CIVIL SUIT NO. 15 OF 2017

SENTRIM HOTELS LTD....................................APPLICANT

VERSUS

COUNTY COUNCIL OF NAROK..................RESPONDENT

RULING

1. The applicant through his notice of motion dated 21/10/2016, has sought the following orders from this court.

1. An order to reinstate High Court Civil Suit No. 394 of 2012 for hearing.

2. That the order of Hon. Mr. Justice Kiarie which dismissed this suit on 8/7/2015 be reviewed, varied and/ or set aside.

3. That costs of this application be costs in cause.

The  application is brought under section 1A, 1B and 3A of the Civil Procedure Act (Cap. 21) Laws of Kenya and it is also expressed to be brought under Orders 12 and 51 of the 2010 Civil Procedure Rules.

2. The  application is supported by 5 grounds  which are set out on the face of  the notice of motion.  In ground 1, the applicant has  stated that the dismissal of his suit was through the default of his  advocates on record.  In ground 2, the applicant has stated that he  believed that his advocates on record were attending the court.   In ground 4, the applicant has stated that the delay occasioned in filing and prosecuting this matter is not  so inordinate or so great as to  be considered  inexcusable.  In ground 5, the applicant has stated that it is in the interest of justice t hat the order of dismissal be reviewed and the suit be reinstated for hearing and determination. In ground 3, the applicant has stated that he is keen in  prosecuting the suit if it is reinstated.

3. Furthermore, the applicant has deponed to a 12 paragraphs supporting affidavit.  The supporting affidavit  has been deponed  by Rajini Shah who has described himself as the Chief Executive officer of the applicant company. He  has deponed   to the following major matters.  In paragraph 4, he has averred that they  had employed the services of Messrs Njonjo Okello & Co. Advocates to prosecute the instant suit on their  behalf.  He has further averred that he came to learn later that their counsel did not appear in court on several occasions and as a result the court dismissed their suit with costs to the respondents.  Additionally, he has averred  that  the costs awarded to the respondent in the sum of Ksh.800,000/= have been fully paid.  And for that reason, he has averred that the respondent will not suffer any prejudice if the application is allowed.  Finally in paragraph 8, he has averred that the applicant is still aggrieved by the actions  of the respondent, which actions are enumerated in the plaint.  It is for these reasons that the applicant seeks reinstatement of the dismissed suit so that the issues in dispute may be properly ventilated for final determination.

4. The respondent did not file any replying affidavit.  Ms Kinuthia who held Mr. Maina’s brief submitted that the orders sought by the applicant are at the discretion of the court.  She also submitted that the applicant must show that they were diligent in prosecuting their suit and must also show that they were not at faulty in prosecuting their suit.  She confirmed that the applicant has fully paid the cost to her client.

5. I have considered the affidavit evidence of  the applicant, its grounds in support of the  motion and the 2 authorities cited in support of the application.  I find the following to be issues for determination.

1. Whether or not there has been delay in prosecuting this application.

2. Whether or not an order should be made to the effect that the cost of this application shall be costs in cause.

In relation to 1st issue, I find that the suit was dismissed on 8/7/2015.  This is clear from paragraph 3 of the applicant’s supporting affidavit.  The suit was dismissed for non-appearance of the applicant on several occasions.  The application for reinstatement was filed on 21/10/2016.  The delay of over one year in filing and prosecuting this application  has not been explained by the applicant.  I find that the delay is inexcusable. Furthermore, the fault of the applicant’s counsel in failing to appear in court is not an excuse to reinstate that application.

6. In the light of the foregoing, I find that the delay in filing and prosecuting this application is inexcusable and cannot be condoned.

7. In the circumstances, I find that the application lacks merit and is hereby dismissed with costs to the respondents.

Ruling delivered in open court this 2nd day of November, 2017 in the absence of the applicant and in the presence of Ms Kinuthia holding brief for Mr. Maina.

J. M. Bwonwonga

Judge

2/11/2017