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|Case Number:||Civil Case 429 of 2011|
|Parties:||Chandaria Industries Limited v Sonal Holdings (K) Limited & Pareh Kumar Dodhia|
|Date Delivered:||31 Jul 2014|
|Court:||High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)|
|Judge(s):||Jonathan Bowen Havelock|
|Citation:||Chandaria Industries Limited v Sonal Holdings (K) Limited & another  eKLR|
|Court Division:||Commercial Tax & Admiralty|
|Case Outcome:||Defendants’ Notice of Motion dismissed|
|Disclaimer:||The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information|
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI COMMERCIAL & ADMIRALTY DIVISION
CIVIL CASE NO. 429 OF 2011
CHANDARIA INDUSTRIES LIMITED ………….…………… PLAINTIFF
SONAL HOLDINGS (K) LIMITED ………..………….. 1ST DEFENDANT
PAREH KUMAR DODHIA ……………………..………. 2ND DEFENDANT
“a) The Plaintiff has without any explanation inexplicably failed to take any steps towards the prosecution of this suit for over two years and six months.
b) The Plaintiff’s delay in preparing this matter for hearing is inexcusable and contrary to the spirit of the Civil Procedure Act Chapter 21 Laws of Kenya and the Rules made there under which envisage an expeditious, just and affordable disposal of suits.
“Blunders will continue to be made from time to time and it does not follow that because a mistake has been made that the party should suffer the penalty of not having his case heard on merits….. I think the broad equity approach to this matter is that unless there is fraud or intention to overreach there is no error or default that cannot be put right by payment of costs. The court as is often said exists for the purpose of deciding the rights of the parties and not for the purpose of imposing discipline.”
With the above in mind, the Plaintiff submitted that this was a suitable case for the Court to exercise its discretion in its favour by granting it an opportunity to set the suit down for hearing. In its view, the delay in fixing the suit for hearing was unintentional and was therefore, excusable.
“(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 may make such orders as it thinks fit to obtain expeditious hearing of the suit.
(3) Any party to the suit may apply for its dismissal as provided in subrule rule 1.”
As correctly pointed out to Court by the learned counsel for the Plaintiff, whether it strikes out a suit for want of prosecution under Order 17 rule 2 as above is purely a matter of its discretion. As to how it exercises that discretion, I have gained some considerable guidance from one of the authorities cited to me by the Plaintiff being Allen v Sir Alfred McAlpine case (supra). Diplock LJ in his admirable judgement detailed:
“What then are the principles which the court should apply in exercising its discretion to dismiss an action for want of prosecution on the defendant’s application? The application is not usually made until the period of limitation for the plaintiff’s cause of action has expired. It is then a Draconian order and will not be lightly made. It should not in any event be exercised without giving the plaintiff an opportunity to remedy his default, unless the court is satisfied either that the default has been intentional and contumelious, or that the inexcusable delay for which the plaintiff or his lawyers have been responsible has been such as to give rise to a substantial risk that a fair trial of the issues in the litigation will not be possible at the earliest date at which, as a result of the delay, the action would come to trial if it were allowed to continue. It is for the defendant to satisfy the court that one or other of these two conditions is fulfilled. Disobedience of a peremptory order of the court would be sufficient to satisfy the first condition. Whether the second alternative condition is satisfied will depend on the circumstances of the particular case; but the length of the delay may of itself suffice to satisfy this condition if the relevant issues would depend on the recollection of witnesses of events which happened long ago.
Since the power to dismiss an action for want of prosecution is only exercisable on the application of the defendant his previous conduct in the action is always relevant. So far as he himself has been responsible for any unnecessary delay, he obviously cannot rely on it. Moreover, if after the plaintiff has been guilty of unreasonable delay the defendant so conducts himself as to induce the plaintiff to incur further costs in the reasonable belief that the defendant intends to exercise his right to proceed to trial notwithstanding the plaintiff’s delay, he cannot obtain dismissal of the action unless the plaintiff has thereafter been guilty of further unreasonable delay. For the reasons already mentioned, however, mere non-activity on the part of the defendant where no procedural step on his part is called for by the rules of court, is not to be regarded as conduct capable of inducing the plaintiff reasonably to believe that the defendant intends to exercise his right to proceed to trial. It must be remembered, however, that the evils of delay are cumulative, and even where there is active conduct by the defendant which would bar him from obtaining dismissal of the action for excessive delay by the plaintiff anterior to that conduct, the anterior delay will not be irrelevant if the plaintiff is subsequently guilty of further unreasonable delay. The question will then be whether as a result of the whole of the unnecessary delay on the part of the plaintiff since the issue of the writ, there is a substantial risk that a fair trial of the issues in the litigation will not be possible.
Next as to the personal position of the plaintiff. He may, of course, have been personally to blame for the delay; but generally the ordinary litigant, once he has consulted his solicitor, is helpless before the mysterious arcana of the law. Delay, when it occurs from this stage onwards, is usually not his own fault but that of his solicitor. If, as a result of his solicitor’s default, he has a remedy in an action for negligence against his solicitor; and, as already pointed out, if the solicitor is financially able to meet the damages, this remedy is an adequate one. If, however, the solicitor would be unable to meet the damages, the hardship to the plaintiff, whose action against the defendant is dismissed for want of prosecution, is grave indeed. In strict logic, the impecuniosity of the plaintiff’s solicitor would not affect the defendant’s right to have the action dismissed; but in exercising a discretion, even a judicial one, the courts can temper logic with humanity and the prospect that an innocent plaintiff will be left without any effective remedy for the loss of his cause of action against the defendant is a factor to be taken into consideration in weighing, on the one hand, the hardship to the plaintiff if the action is dismissed, and, on the other hand, the hardship to the defendant and the prejudice to the due administration of justice if it is allowed to proceed.”
“In the instant case there is no affidavit in support by the advocate who allegedly committed the mistake. Nor is there any material by way of any explanation. As a matter of common sense, though not making it a condition precedent, the Court will want to take into account the explanation as to how it came about that the applicants found themselves with an appeal that was incompetent. If the omission was deliberate and not due to accident the Court would, in our view, be unlikely to grant an extension. But, again, with respect, there was no material before the learned single Judge. Nor was there any material before her to show that the omission was a result of any inadvertence or accident to enable her to exercise her discretion.
We always understood the rule to be that once a party was in default (as the applicants here admittedly were) it was for them to place the necessary and relevant material before the Court to satisfy the Court that despite their default, the discretion should nevertheless be exercised in their favour. This burden unfortunately the applicants had not discharged.”
“So the test is whether the delay is prolonged and inexcusable, and, if it is, can justice be done despite the delay? Justice is justice to both the Plaintiff and the Defendant, so both parties to the suit must be considered, and the position of the judge too, because it is no easy task, for the documents, and all, witnesses may be missing and the evidence is weak due to the disappearance of human memory resulting from lapse of time. The Defendant must however satisfy the court that he will be prejudiced by the delay or even that the Plaintiff will be prejudiced. He must show that justice will not be done in the case due to the prolonged delay on the part of the Plaintiff before the court will exercise its discretion in its favour and dismiss the action for want of prosecution. 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 notwithstanding the delay, the action will not be dismissed, but it will be ordered that it be set down for hearing at the earliest available time. Where the Defendant satisfies the court that there has been prolonged delay and the Plaintiff does not give sufficient reason for the delay the Court will presume that the delay is not any prolonged but it is also inexcusable and in such case the suit will be dismissed”.
“A mistake is a mistake. It is no less a mistake because it is an unfortunate slip. It is no less pardonable because it was committed by senior counsel though in the case of junior counsel the court might feel compassionate more readily. A blunder on a point of law can be a mistake. The door of justice is not closed because a mistake has been made by a person of experience who ought to have known better. The court may not forgive or condone it but it ought certainly to do whatever is necessary to rectify it if the interests of justice so dictate.”
In the latter case, Ogola J. referred to the decision of Waki J. (as he then was) in Bi-Mach Engineers Ltd v James K. Mwangi (2011) eKLR when the learned Judge stated:
“I have examined the affidavit in support of the application and it is my view that it falls short of candidness and betrays lack of expedition. There is no explanation at all about what the Applicant was doing between 2nd December and 30th December 2010 when an undisclosed informer gave out the information about the decision of the court. The Applicant had a duty to pursue his advocates to find out the position on the litigation but there is no disclosure that the Applicant bothered to follow up the matter with his erstwhile advocates. It is not enough simply to accuse the advocate of failure to inform as if there is no duty on the client to pursue his matter. If the advocate was simply guilty of inaction, that is not an excusable mistake which the court may consider with some sympathy. The client has a remedy against such an advocates”. (Emphasis added).
Further, Ogola J. quoted from the Court of Appeal case of Three Ways Shipping Services (Group) Ltd v Mitchell Cotts Freighters (K) Ltd (2005) eKLR as to the laying to rest the question of advocates’ mistake being visited on the client as follows:
“The question of advocate’s mistake being visited on the client has been raised from time to time. Rt. Hon. Lord Denning M.R. in “the Due process of Law” London Buterworths at page 93 said:
‘wherever a solicitor, by his inexcusable delay, deprives a client of his cause of action, the client can claim damages against him; as for instances when a solicitor does not issue a writ in time or serve it in time or does not renew it properly. We have seen, I regret to say, several such cases lately. Not a few are legally aided. In all of them, the solicitors have, I believe, been quick to compensate the suffering client; or at least their insurers have. So the wrong done by the delay has been remedied as much as can be. I hope this will always be done’.
The learned Judges of Appeal went ahead to hold as follows:
The above passage is relevant to the present application in which the applicant is blaming its previous counsel for the misfortune that it finds itself in. It must be emphasized that justice must look both ways. Here the Respondent obtained a Judgement which has now been registered in the High Court of Uganda. Notice to execution was issued and as of now execution is at an advanced state. In our view, it is too late to reverse the process”.
“Other borrowings from Chandaria Industries Ltd are unsecured.”
It seems therefore that the first Defendant did borrow monies from the Plaintiff Company herein in the year 2009 and such detail, as above, would amount, in my opinion, to an admission. Exercising my discretion as best as I can and bearing in mind the amounts involved in this suit, I would thus be loth to strike out the same as against the Defendants.
DATED and delivered at Nairobi this 31st day of July, 2014.
J. B. HAVELOCK