Ruga Distributors Limited v Nairobi Bottlers Limited [2015] KEHC 214 (KLR)

Ruga Distributors Limited v Nairobi Bottlers Limited [2015] KEHC 214 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL CASE NO.  534 OF 2011

RUGA DISTRIBUTORS LIMITED ………….………………...PLAINTIFF

VERSUS

 NAIROBI BOTTLERS LIMITED ………….….………………DEFENDANT

RULING

By an application dated  8th May 2015  the defendant/applicant –Nairobi  Bottlers  Ltd seeks  for dismissal of this suit  as filed  by Ruga  Distributors  Ltd  for want of prosecution.  In the alternative, the defendant urges the court to strike out the suit for being frivolous, vexatious and/or an utter abuse of the process of the court.

The application is brought under the provisions of Order 2 Rule 15 (1) (b) (c) and (d) as read with Order 51 Rule 4 of the Civil Procedure Rules s and Sections 1A, 1B and 3A of the Civil Procedure Act.

The defendant further urges this court to make such further orders that are expedient and necessary for the ends of justice.

The application is predicated on the grounds that  since the filing  of this suit  in 2011, about 4  years ago, no significant step has been taken by the plaintiff  to set down he suit for  hearing  hence the   plaintiff  is guilty  of inordinate  and inexcusable  delay, which conduct  has caused the defendant  irredeemable  prejudice.   In addition, it is contended that the suit as framed against the defendant is in any event frivolous, vexatious and an abuse of the process of the court and therefore in the circumstances it is only fair and just that the court grants the orders sought. 

The application is further supported by the supporting affidavit sworn by Mshai Ngulo an employee of the defendant in the Finance Department.  According to Mr Mshai Ngulo, since 7th December 2011, no significant step has been taken by the initiator of this suit to have it set down for hearing.  In addition,  that albeit  the plaintiff is  described as Ruga Distributors  Ltd, all the documents  filed in the suit  with the plaint show that  Ruga Distributors is a business  name  whose registered  legal person is Peter Kangethe Mwangi  as per annexture  exhibit MN. That despite the above revelation, the person of Peter Kangethe Mwangi has in his witness statement described himself as a Director of the plaintiff.

Further, that albeit the plaintiff seeks for damages for breach of contract, there are no particulars of loss /or damage rendering the suit untenable and unsustainable.  That despite the defendant writing to the plaintiff on 22nd March 2013 seeking for particulars of loss and or damage, the said particulars have not been furnished. That due to effluxion of time, it  has become  next  to impossible  to get any witnesses whom  the defendant  may have  intended  to rely upon, which delay  therefore  has caused prejudice  to the  defendant.

The application is opposed by the plaintiff who filed a replying affidavit sworn by Peter Kangethe Kangi one of the Directors of the plaintiff company on 6th July 2015.  Mr Kangethe deposes that the application by the defendant lacks merit.  That  he had on  occasions visited  the chambers  of George  Wakahiu & Njenga  Advocates  who filed  the suit  on his behalf  but he  had  been advised  that the  said law firm had closed  office and  the counsel was outside  the  jurisdiction of Kenya.  That  his  efforts  to locate  the said advocate  were  futile  hence on      15th March 2015 he  appointed  the current  advocates  Munyasya & Company Advocates to conduct  the suit on his behalf.

According to the Mr Kangethe, the orders sought are unwarranted as they will defeat justice to dismiss the suit for the mistake of his counsels.  That he is keen to have the suit prosecuted on merit and that the plaintiff would suffer irreparable loss if the suit is dismissed. 

The parties agreed to dispose of the application by way of written submissions.  The applicant’s  submission dated 28th July 2015  were filed on 29th July 2015  together  with  list of  authorities whereas  the  respondent’s  submissions  dated 8th October 2015  were filed on         12th October 2015, though erroneously  headed defendant’s/respondent’s  submissions, which error is nonetheless curable on the court’s own motion by reference to the correct party who filed the submissions.

The applicant submits that Article 159(2) (d) of the Constitution provides that justice shall not be delayed and that justice is for both the plaintiff and defendant.  It relied on Hassan Nyange Charo V Khahb Mwashetani & 3 Others C App 14/2014(SC) Rawal DCJ, & Tunoi SCJ wherein they stated:

“………..in order to dispense  justice, it is incumbent  upon  judicial  officers  and courts  in general  to expedite  the matters  before them.  Indeed Article 159(2) (b) of the Constitution provides that justice shall not be delayed.

The  applicants  further  relied on the case of  Kuchanga Mwambue  Kalama  V Joseph Omoth Tenywa  [2014] e KLR  where it  was stated  that once a party files a  suit in court, it is  incumbent  upon him to put in motion mechanisms  to comply with the law  within  a reasonable  period  and prosecute  the case expeditiously, and  without undue  delay, referring  to  Article  159(2) (d) of the Constitution  and Sections 1A of the  Civil Procedure Act.

The applicant  further submitted that Order  17 Rule  2  and Order  2 Rule 15 of the Civil Procedure  Rules 2010 form the basis of  the application as the confer  upon this  court discretionary  power to dismiss suits or  strike  out pleadings   which the  claimants  evidently had lost  interest in.  That in this case, it had been shown  that one  year  had lapsed  since any action  had been taken in the  suit and no cause  had  been shown why the  suit  should not  be dismissed.

In the alternative, it is contended that the suit herein fits the description of one under Order 2 Rule 15 of the Civil Procedure Rules and therefore this court must strike it out.  The defendant/ applicant relied  on Kiama  Wangai V John N.Mugambi & Another [2012] e KLR where the court  held that where  the suit is  without substance  or groundless or fanciful and or brought  or  instituted  with some  ulterior motive  or for some collateral one  or to gain some collateral  advantage which the law does  not recognize  as legitimate  use of process, the court  will not  allow its process to be used as a  forum for such ventures.  That to do that would be  opening  a front for parties to  ventilate  vexatious litigation which  lack bona fides with the sole intention of causing the opposite party unnecessary anxiety, trouble and expense  at the expense of deserving  cases contrary to the  spirit of the overriding  objectives  which requires  the court  to allot  appropriate  share of the  court’s  resources  while taking  into account  the  need to allot  resources to  other cases.

According to the applicant, there has been inordinate delay which is not sufficiently explained and that injustice has been occasioned to the defendant since   justice delayed is justice denied.  They  relied on the case of Ivita V Kyumbu HCC 346/1971 by Chesoni J ( as he then was ) and  Allen V Sir Alfred  MC Alpine  & Sons Ltd[1968] 1 ALL ER 543 that unless a credible  excuse  is made out, the natural  inference  would be  that it is  an inexcusable delay  which is likely to  seriously prejudice  the defendant.  Further, that as a rule, the longer the delay, the greater the likelihood of serious prejudice at the trial.

The defendant attacked the replying affidavit filed by the plaintiff/ respondent on the eve of the hearing of this application submitting that such belated action only serves to show the callousness of the respondent in dealing with the matter.  That the applicants  did serve   the firm of  George  Wakahiu  and Njenga advocates  with this application on         26th May 2015 and therefore  the respondent was misleading  this court  by alleging   that the office of  his former advocates  was closed  and or  that the  advocate  was outside the jurisdiction  of Kenya.

That as a result  of laches  the defendant  would not be able to  trace  its witnesses  and even if they were traced  they would  be unwilling to testify in the matter  as a result  of the time lapse.  They relied  on Reggentine V Beech Olm4 Bakerries  Ltd [1967] 111 SOL. Jo 216  and Fitzpatrick  V Batger  & Company Ltd[1967] 2 ALL ER 657 where  it was stated  that it is  the duty of the plaintiff’s advisors  to get on with  the case and that public policy demands that the business of the courts should be conducted with expedition.  The  applicant also relied  on Utalii Transport  Company Ltd  & 3 Others  V NIC Bank & Another [2014] e KLR citing with approval Communications Courier  & Another  V Telkom (K) Ltd [1999] e KLR  where it   was stated that justice is   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 or witnesses  may  be missing  and evidence  is weak due  to the disappearance  of human memory  resulting from lapse of time.

The applicant  further submitted  that the  objectives  of the Civil Procedure  Act as  captured  in Sections 1A and 1B  of the Civil Procedure Act  and the case of  Kamlesh Manukhal Pattni Vs Central Bank of Kenya  and Another [2013] e KLR must be  applied  particularly on the timely disposal  of proceedings  in a just  and fair manner.  They also relied on the case of   Unga Ltd  V Magina Limited  HCC 1250/99[2014] e KLR  where the  court was  disinclined  to sustain the suit which  had been delayed  for 13 years and  found the delay prejudicial to the  defendants   beyond  monetary compensation. The applicants/defendant urged the court to find this application meritorious and allow it as prayed with costs.

In their  opposing  submissions, the  plaintiff/respondent submitted that the suit  herein should not be  dismissed  for  want of prosecution  because the plaintiff had  visited  his counsel’s  offices  only to  be advised  that the said  law firm had closed office and  counsel   was outside   the jurisdiction  of Kenya  and that  he tried to  locate the advocate to no avail.  The plaintiff maintained  that there  was no  inordinate  delay  in having  the suit prosecuted  and that  for there  to be  inordinate  delay it  has to be  delay  beyond  acceptable  limits, citing  Utalii Transport  Ltd(supra) and   Lee Waigwa  Wariungi (supra) as well as  Charles M. Kahumka  V Wilson  Mugo Mwangi (Nairobi HCC  455/2012- that unless a party has contributed to his mistake, he ought not to be punished for the mistakes of his counsel.

The respondent also contended that  having already paid a substantial  sum of money to his previous  advocates  he expected  services  from them and thus, that was the  reason for delaying  in appointing  another firm of advocates  where he  would be compelled  to pay other  legal  fees.

The plaintiff  relied on the case  of Common Camera Satellite Services (supra) Janet  Gakheri Kithela Vs Nation  Media  Group  & Another  Nairobi HCC 311/2013  and Umbisa  Moses  Gweliona V SDA EAA Union  Nairobi HCC 254/2009 and maintained that he  had offered  reasonable  cause as  to why the suit herein  should  not be dismissed  for mistakes of his counsel which were the cause  for the delay.

In the  plaintiff’s view, the defendant had not  satisfied  the court  that it  will be  prejudiced  by the delay in prosecution  of the  suit which  can be set  down  for hearing  in the interest  of  justice .  The plaintiff  admitted that indeed  there had been delay in prosecuting his suit  but  blamed his advocates and relied on the cases  of Moses Muriira Maingi & 2 Others  V Maingi Kamuru & Another  Nyeri CA 151 of 2010 citing Ivita V Kyumbu (supra) where it was stated that  the power of the court  to dismiss  a suit for want of prosecution  is a discretionary power but which  should be  exercised judicially.  That since  the plaintiff  is interested  in the  disposal of its case  it should be given  audience and that no serious prejudice will be  occasioned   to the defendant if the  suit is  set down for  hearing  and that instead  it is the plaintiff who will be  seriously prejudiced by the  dismissal of his suit since  both parties  have not  complied  with Order 11 of the Civil Procedure  Rules.  That the plaintiff is willing to abide by any conditions that the court may set.

I have carefully considered the application and the affidavits.  I have also considered the submissions by counsels for the parties and the authorities relied on in extenso.  There are two issues here for determination.

1. Whether  the applicant   has  satisfied    the court that  this suit  ought to be dismissed  for want of prosecution and if not;

2. Whether the suit herein should  be struck out  under Order 2 Rule  15 of the Civil Procedure  Rules

The facts:

This suit  was instituted  on 7th  December 2011 under fast track, seeking  damages  for breach of  contract   with costs and on 27th December   2011 the defendant  herein entered an appearance  and filed defence  on     10th February  2012 denying  the plaintiff’s claim.

On 21st May 2012, the plaintiff’s counsel George Wakahiu & Njenga advocates wrote to the defendant’s advocate inviting them to send a representative to the court registry on 12th June 2012 at 10.30am with a view to fixing a suitable hearing date.  That invitation was served on the defence counsel on 22nd May 2012 and received in court on 12th June 2012.

On 12th June 2012, one, Moses of George  Wakahiu advocates for the plaintiff appeared in the court registry  in the absence of the defendant’s  representative  and a hearing date  was fixed for  18th December 2012  but crossed  out.

Since then- 12th June 2012, no other step or action has been taken by the plaintiff to cause this suit to be heard and determined.  On 8th May 2015, the defendant’s counsel’s applied to have this suit dismissed for want of prosecution. 

The Law

Both parties’ advocates correctly  submitted  that the  power to dismiss a suit  for want of prosecution  is a discretionary  power donated  by Order  17 Rule 2  of the Civil Procedure Rules, which  discretion, nonetheless, must be exercised  judicially  and not  capriciously.

The leading  case which  has received  approval  from the Court of Appeal on dismissal  of cases for  want of  prosecution is Ivita V Kyumbu  [1984] KLR 441 where Chesoni J( as  he then was ) held that:

“The test is whether the delay is prolonged and inexcusable, and, if it is, can justice be done despite such delay.  Justice is justice  to both the plaintiff and 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 or  witnesses  may be  missing  and 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 his favour and dismiss  the action for  want of  prosecution.  This even  is delay is prolonged  if the court is satisfied  with the plaintiff’s  excuse for 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.”

In a nutshell, the delay complained of should not be inordinate or prolonged but should be inexcusable.  If the plaintiff gives an explanation which excuses the delay, even if it is prolonged, the suit may not be dismissed.  In addition, the defendant should show what prejudice it stands to suffer due to the delay complained of.  The court should also be satisfied that justice will still be done to both parties despite the delay to excuse it.  That is the gist of  all the decisions  which the  parties  advocates have relied  on, whether  from the High Court, Court of Appeal  or Supreme Court.

Thus, where the plaintiff’s side files suit and sleeps on the job and forgets to prosecute the case for unjustified and or unexplained length of time and reasons, it may be time to hunt the hunter.  Such delay that is inordinate and unexplained may be a perfect opportunity for the defence or even the court to turn the tables on the plaintiff’s side and put it on the defensive.  In some instances the defence may get away with dismissal of an otherwise meritorious case.

Dismissal of suit for  want of prosecution is meant to and helps  stem  injustice  caused to defendants  as a result of  delays in prosecuting  suits such that  if the dismissal fails then the plaintiff  is nudged into taking a hearing date. 

Section 3A of the Civil Procedure Act gives the court unlimited power and preserves its inherent power to make such order as may be necessary for the ends of justice or prevent abuse of the process of court.  Equally, Section 63(e) of the Civil Procedure Act  which  is the statutory basis for all  interlocutory applications gives courts the discretion, where  it is so prescribed, in order to salvage justice  from defeat  to make  such interlocutory  orders inter alia, as appear to the court  to be just  and convenient.  Order 17 Rule 2 is then the procedural repository of the operative law on application and conditions or applications for dismissal of suits for want of prosecution.

The courts have variously been called upon to interpret and apply the law on application for dismissal of suit for want of prosecution and now that law is settled.  However, each case has to be considered on its own merits and peculiar circumstances.

E.T. Monks & Company Ltd V Evans [1985] 584 established that public policy interest demands  that the business  of the court must  be conducted  with expedition, citing  with approval Lord Denning MR in the off cited case of  Fitzpatrick  V Batger & Company Ltd[1967] 2 ALL ER  657 wherein he warned that:

“Public policy demands that the business of the courts should be conducted with expedition.”

In Agip Kenya Ltd V Highlands Tyres Ltd [2001] KLR 630.  Visram J    (as he then was) considered and articulated the flip side of the issue stating:

“ It is  clear that the  process of the judicial  system requires  that all parties  before  the court  should be given  an opportunity to present  their  cases  before  a decision  is given.  It is, therefore, not  possible  that the Rules  committee intended  to leave the plaintiff without a remedy and to take away  the authority  of the court when  it made  Order XV1( now Order 17) Rule  5 of the Civil Procedure Rules.”

In the case of Naftali Opondo Onyango  Vs National  Bank  of Kenya[2005] e KLR, the court  reiterated  the burden  of proof that a defendant  seeking a dismissal of suit for want of  prosecution must meet  quoting Salmon LJ  in Allan V Sir Alfred MC Alphine & Sons Ltd [1968] 1 ALL ER 543, where F. Azangalala J (as he then was) stated that

“The defendant must show;

  1. That there has been inordinate delay.  What is or is not inordinate delay must depend   on the facts of each particular case.  They vary infinitely from case to case but it should not be too difficult to recognize inordinate delay when it occurs.
  2. That this inordinate delay is inexcusable as a rule until a credible excuse is made out the natural inference would be that it is inexcusable.
  3. That the defendants are likely to be seriously prejudiced by the delay.

This may prejudice at the trial of issues between themselves and the plaintiff or between each other or between themselves and third parties.  In addition to any inference that may properly be drawn from the delay itself, prejudices can sometimes be directly proved.  As a rule the longer the delay the greater the likelihood of prejudice at trial.”

The Court of Appeal in Salkas Contractors Ltd Vs Kenya Petroleum Refineries: Mombasa CA 250 of 2003 (unreported) stated that the above principles apply in Kenya and had been consistently followed by Kenyan courts.

For instance, as earlier stated, in the Ivita Vs Kyumbu (supra) case, nonetheless, courts have been slow to dismiss suit for want of prosecution where the court is satisfied that the hearing of the suit can proceed without further delay, that the defendant will suffer no hardship and that there has been no flagrant and culpable inactivity on the part of the plaintiff.

In the Naftali case, (supra) the learned judge declined to dismiss the suit on the ground that the plaintiff had shown interest in having it heard on merit and expeditiously.  Visram J in the Agip (K) supra case stated that:

 “Delay is a matter of fact to be decided on the circumstances of each case.  Where a reason for the delay is offered, the court should be lenient and allow the plaintiff an opportunity to have his case determined on merit.  The court must also consider whether the defendant has been prejudiced by the delay.”

In the Agip (supra) case the delay was for 8  months  and counsel for the plaintiff  had offered  an explanation that the delay was caused  by the process of relocating their offices  and that  they were  willing to take  an early  hearing date and the court  found that 7 months  delay was not inordinate. The court also considered the prejudice  that would be  occasioned to the  plaintiff  if the claim for a substantial  amount claimed  amounting  to shs 50 million  was dismissed  and found it  to be  a relevant  factor and stated that the  claim was not a simple amount to be  taken lightly and that the  court would  not be  upto its  duty if it  were to  drive the  plaintiffs’ claim out of the  seat of justice   because of the  8 months  delay which had been explained.  The learned Judge also reminded himself of the familiar plea to courts that they exist to do justice   and participate in sustaining suits rather than throwing them out on minor procedural defects.

The Court of Appeal in the case of  Japheth Pasi Kilonga & 8 Others  V Mombasa Autocare Ltd [2015] e KLR  stated  that the single most  drawback in the administration  of justice  in this jurisdiction is the delay  in the determination of cases, resulting  in the overwhelming case back log.  Citing Lord Denning MR in the off cited case of Fitzpatrick V Batger & Company Ltd (supra) that:

 “ public  policy demands  that the  business  of the courts should  be conducted  with expedition”  the Superior  court observed  that “ Like  never before today  this policy is emphasized  more  as it is  underpinned in the Constitution.  Article 159(2) (b) and (d) enjoins courts to ensure justice is not delayed and is administered without undue regard to procedural technicalities. Sections 14(5)  of the Supreme  Court Act, 3A and 3B of  the appellate jurisdiction Act and  1A and 1B of the Civil procedure Act have also enacted  overriding  objectives  which require  the courts  to facilitate  the  just, efficient, expeditious, proportionate and  affordable  resolution of disputes.  Order  17 Rule 1 of the Civil Procedure  Rules  requires, as a general rule, that hearing  of suits once commenced  continue  from  day today………”  It is therefore possible for the court to demand expedition in the disposal of cases and do justice at the same time; balancing the scales of justice.”

Whether or not to allow this application for dismissal of the plaintiff’s suit for want of prosecution goes to the question of exercise of judicial discretion.  That discretion  is now firmly settled, should be exercised  in a judicial and reasonable  manner, upon proper material, after the  court  has considered, in addition, the party’s  overall conduct  in the case and  the sufficiently of the reasons for  the delay.

According  to the plaintiff, the delay  was occasioned  by its advocates;  That  the plaintiff’s director on occasions visited  their advocates  offices and were advised that the office had  been closed  and  the advocate  had gone outside  the  jurisdiction of the court.  On many occasions, this court has had to hold that mistakes of counsel should not be visited on their innocent clients.  Nonetheless, it is not in every case that the court will fault the advocate for the delay and excuse the client.  It depends on the facts and circumstances of each case.  In the instant case, the plaintiff has not been candid.  The plaintiff’s director Mr Peter Kangethe Kangi in his replying affidavit has made very casual depositions that are not supported or at all.  He does not state who advised him of the closure of their advocate’s office.  He does not  state who informed  him that  the advocate  had gone  out of  the jurisdiction of Kenya  and  to which jurisdiction he had moved to  and when and why for that matter.  He does not  state  when he  last visited   his advocate’s  law firm only to be advised  that  the firm  had been closed and  the  advocate  gone out  of the jurisdiction  of Kenya.

In the written submissions, the present  advocate  for the plaintiff makes  statements of facts from the bar  which matters  were never  deposed  by the client  that “………….. the plaintiff having already paid a substantial sum of money to his  previous advocates, expected  services  from  them, and that  was the reason  for  delaying  in appointing  another firm where he  would be  compelled  to  pay other  legal fees.”

Payment of legal fees is a factual issue .Nowhere  in the replying affidavit  does  the plaintiff depose that he  had paid  a substantial  sum of money   to his previous  advocate, and  that he  could not  have retained  another advocate to represent him to  prosecute  this suit  on that  account.

In addition, the plaintiff does not disclose to this court how he learnt of the application herein for dismissal of his suit.  His present advocates Muasya & Company Advocates  came on  record  on 8th July 2015  after  the  application for dismissal of the suit  for want of prosecution had been  filed on 8th May, 2015  and  service thereof  effected upon the  plaintiffs  advocates  then on record.  When this matter first came up for hearing on 9th July 2015, the plaintiff’s advocates had just filed their notice of change of advocates.

The court  had perused the record  on the morning of 9th July 2015 and  seen the affidavit  of service  filed on 8th July 2015  showing that  on 26th May 2015, the process server had effected service of the  application upon the plaintiff’s former  advocates Ms George Wakahiu & Njenga   Advocates.  To my utter surprise, as I write this ruling, that  affidavit  of service appears  to have  vanished  from the court  file and  in the mind of the court, the  affidavit  of service   vanished  before the  file was reserved  for ruling  with a  view to hood winking  this court to believe  the plaintiff’s  story.  This court  is  vigilant  enough  particularly on issues  of service of  court process as an omission  thereof  can occasion an injustice  to a party who may be denied an opportunity  to be heard  where there  is no service of process.

Where and how could the defendant’s counsels have traced the  offices  and firm of the plaintiff’s  former advocates if the plaintiff  alleges that  he was  advised ( by an undisclosed person) that the  firm closed and  the  advocate had gone outside  the  jurisdiction of Kenya?

I find the plaintiff to be a very dishonest person and his deposition reflects that judicial ingenuity on his part.  That conduct of an ingenuine plaintiff militates against the exercise of the court’s discretion in its favour.  Further  dishonesty is reflected  in their  present advocate’s submissions  on record  which are  carefully  couched  to say the plaintiff  was trying to trace the  ‘advocate’ and not the firm.  This court does not fall for such cheap theatrical maneuvers.  Whoever comes to equity must come with clean hands.  The plaintiffs  hands  are soiled beyond  peradventure and it  does not, therefore, deserve the discretion  of this court  to be exercised  in its  favour.

I have no doubt that the plaintiff must have  been notified  by his former advocates on record  about this  application and that  is when  he instructed Muasya & Company Advocates  to file notice of change  of Advocates, which notice was filed in the eve  of the hearing of this  application.  I have perused  the said notice of change   of advocates and  again, carefully speaking, the  present  advocate  omitted to  indicate that  it ought to be  served  on the former  advocates  for the plaintiff.

Under Order 9 Rules 5 of the Civil Procedure Rules:

“ A party  suing or  defending by an advocate shall be at liberty to change his advocate in any  cause or matter, without an order  for that purpose, but unless and  until notice  of change of advocate is filed in the court in which  such cause or matter is proceeding and served  in accordance  with Rule  6, the former  advocate shall, subject to Rules  12 and 13 be considered  the advocate of the party  until  the final  conclusion of the cause  or mater, including  any review  or appeal.”(Emphasis added).

The importance of notice of change of advocates has further been emphasized in Order 9 Rule 6 of the Civil Procedure Rules that stipulates that:

 “ The party giving  the notice  shall serve   on every other  party  (emphasis  added) to the cause or  matter( not being  a party in default) as to entry  of appearance ) and  on the former advocate  a copy  of the notice endorsed with a  Memorandum stating that  the notice  has been duly filed  in the appropriate  court( naming it). (Emphasis added).

No doubt , the notice of change  filed by Muasya & Company Advocates  on 8th July 2015  without   service thereof  being  effected  on the plaintiff’s former  advocates on record took no effect  and the  firm of George  Wakahiu & Njenga advocates  were and are  for all purposes  and intent deemed  to be the proper  advocates on record for  the plaintiff  herein and therefore  the proceedings  wherein the firm of  Muasya  & Company Advocates  participated in including filing of  submissions were  improperly on record. Even if such irregularity were to be curable by Article 159 of the Constitution, the question is why did the plaintiff misrepresent to the court the facts and flout the law as above?  The court infers that the conduct of the plaintiff is intended to steal a match on the defendant   and defeat justice and therefore undeserving of the court’s discretion.

This  court, in view of the conduct  of the plaintiff  concludes  that  the delay by the plaintiff to  prosecute  its suit  since June  2012 was intentional, deliberate, contumelious, inordinate, inexcusable  and  unexplained  and  unworthy  of any discretion of  the court  and the blame  game being  shifted to  his advocate is to shift  the attention of this  court from the real issues.

In my view, the explanation on the  plaintiffs’ advocate  purported  mistake  has no  merit  as  the plaintiff failed to demonstrate that (i) he had contacted  his advocate since  June 2012  or (ii) that  he had  been advised that the  firm closed and or (iii) that the  advocate  had gone  out of the  jurisdiction of  Kenya.  Nothing would have prevented the plaintiff to disclose who advised him concerning his advocate’s closure of office and or departure from this jurisdiction.  The plaintiff does not  say that  it ever wrote  to the advocate  and  received return to  the sender  or that  Mr Kangethe made  any telephone  calls to his advocate  without  success. I find his depositions concerning the disappearance of his advocate a barren truth and lacking in candour.  Further, whereas  the court  may excuse  a party for  mistake  of counsel, it is not in every  case that  a mistake  allegedly committed  by an advocate   which is  not even proved, that would be  a ground for exercising  the discretion of the court  in favour of a party (client).  In Savings and Loans Ltd V Susan Wanjiru Muritu Nairobi HCC 397/2002, Kimaru J correctly stated that:

“ Whereas it would  constitute  a valid  excuse  for the defendant  to claim that  she had been let down  by her  former advocates failure to attend court on the date the application was fixed for hearing, it is trite  that  a case belongs  to a litigant  and not  to her advocate.  A litigant has a duty to pursue the prosecution of his or her case.  The court cannot set aside dismissal of a suit   on the sole ground of a mistake by counsel of the litigant on account of such advocate’s failure to attend court.  It is the duty of the litigant to constantly check with her advocate the progress of her case.  In the present case, it is apparent that if   the defendant had been a diligent litigant, she would have been aware of the dismissal of her previous application for want of prosecution soon after the said dismissal.  For the defendant to be prompted to action by the plaintiff’s determination to execute he decree issued in its favour is an indictment of the defendant.  She  had been  indolent  and taking  into account  her past conduct  in the prosecution of the application  to set aside the  default judgment that was dismissed  by the court, it would  be a  traversity of justice for the court to  exercise  its discretion  in favour of such a litigant.”

 I wholly agree  with the  above  persuasive holding  by Honourable  Justice  Kimaru  and add that  it is not enough  for a  party to blame  their advocates but to show the tangible steps taken  by him in following up his matter.  From  the conduct of the  plaintiff herein, especially  by his failure to disclose  who advised  him of his  counsel’s office closure and as to how  he came to know of this application  to instruct  the present advocates  on  record,  this  court finds his conduct not that of a vigilant  litigant.  Further, Order 19 Rule 3(1) of the Civil Procedure Rules is clear that:

“ Affidavits  shall be  confined to such facts as the deponent   is able of  his own knowledge to prove: provided  that in interlocutory proceedings, or by  leave of court, an affidavit  may contain statements of information and belief  showing  the sources  and grounds thereof.”

The plaintiff’s  replying affidavit states  at paragraph 4  “ That  I have   on occasions  visited  the chambers of  the said advocates  and been advised  that the said law firm had closed office and  the counsel is outside  the jurisdiction  of Kenya.

That to date I have tried to locate the said advocate by my efforts have been futile.”

What a contradiction of sorts.  If the  deponent had  on (undisclosed ) occasions  visited the chambers  of the said  advocates and been advised ( by undisclosed persons) that the said law firm had closed office  and that the counsel was outside  the jurisdiction of Kenya, are those  the chambers that he occasionally visited  and received  advise from?

In a nutshell, the plaintiff’s replying affidavit is incapable of belief.  It is  devoid of the deponents’ source of  information  or their basis  of belief  regarding  the matters  stated  in the highlighted  paragraphs on  information and belief.  As a  result, I  find that  part of  the affidavit  by the  plaintiff  fatally defective  and to be of  no evidential  value.  In the Court of Appeal for East Africa  case of Caspair  Ltd V Henry Garddy [1962] EA page  414 the court  held  that the  affidavit did not  state  the deponent’s  knowledge of  or  grounds of his belief in the matters  set out in the affidavits nor did  it distinguish between matters stated  on information and belief  and  matters  to which the  deponent  swore  from own knowledge. Thus, where an affidavit is made on information it should not be acted upon by any court unless the means of information are disclosed. 

 In the absence  of any credible  explanation for the delay in  prosecuting   this suit, and in view  of the defendant’s contention that it shall be  prejudiced by  the delay as its witnesses may  not be traced or if traced  may not  be willing to testify in this case  due to lapse of time which is unexplained to the satisfaction of the court, I hereby allow this application and proceed to dismiss  the plaintiffs  suit for want of prosecution. 

Even if   I was to be  faulted for dismissing  this suit  for want of prosecution I would determine here whether  or not  the  suit is  frivolous, vexatious and  an abuse of the court  process as follows:  The plaintiff claimed for  damages  for breach  of a contract  of distribution  of the defendant’s  products and according to the plaint dated 1st November  2011 which has never been amended, the  particulars  of loss is set out  at paragraph 17 as:

  1. Claims by employees for unlawful termination of employment.
  2. Loss of income.

The law  is clear that  there can  be no general damages  for a  breach of  contract  and that damages  arising  out of breach  of a contract are special damages. See Joseph Ungadi Kedera V Ebby Karai CCA 239 OF 1997 Kisumu).  The  usual  remedy for breach of contract  is damages  to compensate  the  aggrieved and put  them back  in the same  position that they would have  been if the contract had been performed.  ( see British Westing House  Electric  Company V Underground Electric  [1912] AC 673.

In the Joseph Ungadi Kedera (supra) case, the Court of Appeal was categorical (Kwach, Lakha, Owuor JJA that

“As to the award of shs 250,000 as general damages, Mr Adere submitted that there can be no general damages for breach of contract.  We respectively agree.  There can be no general damages for breach of contract. Damages arising from a breach of contract are usually quantifiable and are not at large.  “Where damages can be quantified they cease to be general”

The defendant  deposed  that  by a letter dated  March  2012, annexed  and marked MN, their advocates  wrote to the plaintiffs advocate George  Wakahiu & Njenga  Advocates seeking for  particulars of  loss  and or damage  alluded  to in  the plaint  but that  there  was no  response.  Again that deposition was never controverted or rebutted by the plaintiff.

The plaintiff’s pleadings which have  been archived  in this court  since  16th June  2012  claim for damages for breach of contract and particularized as claims by employees  for unlawful  termination  of employment  and loss of income.  That kind of loss cannot be general in nature.  It is a special damage which was not specifically pleaded and no attempt has been made to correct the situation by seeking to amend the plaint.

Accordingly, I am in agreement   with counsel for the defendant that such a claim raises no reasonable cause of action.  It is frivolous vexatious and an abuse of the court process.  It is only intended to put to expense the defendant.  It was intended for speculation and such hopeless litigation cannot be sustained by the court since no attempt has been made to amend the plaint.  In my view, the plaintiff in this case does not deserve the protection of the decision on D.T.Dobie and Company Vs Muchira [1982] e KLR.

Lord Buckley in Carl Zeiss- Stifting V Rayner [1969] 2 ALL ER 897 at page 908 put it aptly this way:

“………..to ensure that the defendants should not be troubled by claims against them which are bound to fail having regard to the uncontested facts.  In principle, if there is any room for escape from the law well and good, it can be shown.  But in the absence  of that, it  is difficult to see  why a  defendant  should be  called  on to pay a large sum of money  and a plaintiff  permitted to waste  his own  money in an attempt to pursue a cause  of action  which must fail……..The object is to prevent parties being  harassed  and put to expense   by frivolous, vexatious or hopeless litigation.”

This court in deciding this issue warns itself that the power to strike out   a suit is a draconian, coercive and drastic one.  And  because  a party may  thereby be deprived  of his right to  a plenary trial, the court  exercises  those powers  with the  greatest  care  and circumstances and only in  the clearest  of cases  as regards the facts  and the law (see          LJ Fletcher  Moulton in Dyson  V AG [1911] I KB 410.

However, in the instant case, I am  persuaded  beyond peradventure that in striking out  this suit, I shall not  have driven the plaintiff from the  judgment seat to ventilate its grievances  against the defendant  and without  the court having  considered the plaintiff’s right to be heard  because on the face  of it, the cause of  action is obviously and  almost  incontestably bad such that  the plaintiff   did not even respond  to the prayer  for striking out  the suit  under Order  2 Rule 15  of the Civil Procedure Rules. 

The second aspect touches on the capacity of the plaintiff to sue.  The defendant  contended that  albeit  the plaintiff is  described as  Ruga Distributors  Ltd, a limited liability  company registered  under Cap 486  Laws of Kenya, the documents  in support of the claim as filed  by the said  plaintiff, among  them, a certificate   of registration  and Kenya Revenue Authority  Certificate  for the business  show that  the name Ruga  Distributors  is registered  as a business  name under the registration  of  Business Names Act  Cap 499 Laws  of Kenya under certificate No. 437176 of 1st March  2006   and the person  who  is certified  to be carrying  out  business  in that name  is one  Peter Kangethe  Kangi .  The Kenya Revenue Authority Certificate  for Value Added Tax annexed  as VAT 2 also shows that  the person who  was paying VAT for  plot  250/1, Door C,Ngewa Market, which particulars  are also  provided for  on the certificate  of registration  under the Business  Names Act is Peter Kangethe  Kangi.  It is that business name under which the person of Peter Kangethe Kangi traded with the defendant, from the statement of accounts annexed.

For the purposes of litigation, the law only recognizes juridical or natural persons as having the capacity to sue and be sued in their own names.  A registered limited liability company is a juridical person with capacity to sue and be sued in its own name and it is separate from its owners or directors.  On the other hand, the person in whose name the business is registered can sue in his own name, with additional trading as or t/a (the business name).

The question of proper parties before a court of law was elaborately dealt with by this court in HCC 69/2015 Football Kenya Federation Vs Kenya Premier League Ltd [2005] e KLR, citing a plethora of other authoritative decisions.

Albeit  the law  is clear that  misjoinder of parties  or  misdescription of parties  cannot  defeat  suit, but in this  case, where  it is apparently clear that  the plaintiff is  alleged to be a limited  liability  company registered  under Cap 486  Laws  of Kenya, yet the documents  in support  of that alleged  registration are  a certificate  of registration of a business  name, no doubt, there is  no  competent party  with capacity to  sue and  be sued before  this court and the suit herein is merely fanciful.  The defect of bringing an improper party before the court goes to the jurisdiction of the court.  There must be a suable party before the court.  A suable party is essential to jurisdiction whether by compulsory or voluntary submission. (See Football Kenya Federation Vs Kenya Premier League Ltd (supra).

Lord Eldon opined as follows in Llyod V Loaring [1802] CD 6 Ves 773,777.  Accord: Pipe V Bateman [855]

“  It is an absolute duty of a court of  justice  not to permit  persons, not  incorporated, to effect to treat  themselves  as a  corporation upon  the records……..I desire my ground to be understood distinctly.  I do not think the court ought to permit persons, who can only sue as partners, to sue in a corporate character; and that is the effect of this bill.”

Thus the capacity to sue and be sued is conferred by law.  It is a privilege appertaining to corporate or natural persons only.  For corporate   bodies, that right to sue and be sued in its own name is a corporate franchise.

For the above reasons, I agree with the defendant’s counsel’s submissions and find that the body in the name of Ruga Distributors Ltd not being a limited liability company lacked the legal capacity to sue in its own name.  The suit  therefore  herein  had no initiator  and since no attempt  was made  to amend  the plaint to substitute  the plaintiff with an appropriate  party with a legal  personality, there  is no suit before this  court capable  of being  determined  on merits.  In my view, that issue  was  timeously  raised by the defendant   in its defence  at paragraph 2  of the defence  filed on 10th February  2012  that :

“ 2. The defendant denies  in toto the descriptive  contents   of paragraph 1 of the plaint  with regard  to the plaintiff, in particular, the defendant  denies that   the plaintiff is a limited  liability  company and the suit  as framed is  incompetent and defective.”

Despite the above point raised by the defendant’s defence which was served on the plaintiff, the plaintiff’s eyes remained shut. The defendant  again by prayer  No. 2  and 3  of  this application dated  6th January  2015 sought in the alternative  the striking  out of  this suit  under Order  2 Rules  15 (b) (c )  and (d)  for being frivolous, vexatious and an utter abuse of  the process of the court. The defendant  also swore  an affidavit  through Mshai Ngulo and  at paragraph  3 and 4   deposed to  the matters complained of herein  but in the replying affidavit  of  Peter  Kangethe Kangi  and even the  submissions  of the plaintiff’s advocates, they carefully avoided any reference  to that prayer  and grounds  which  in itself is a preliminary point of  law which   this court  was bound  to determine  in the first instance such that even if this  court was to find  that the  delay in prosecuting  this suit  was not inordinate or  that despite  the delay (which  delay must have  been satisfactorily  explained  to this court), justice  could  still be done; and  that no prejudice  would be done  to the defendant  if the suit is  sustained and heard on merit despite the delay, this court  would on the basis that  this suit  is frivolous, vexatious,  raises no reasonable cause of action and an abuse of the court process  and strike it out and dismiss it.

In this case, I find that the  suit herein  was filed  without the  legal standing  of the plaintiff  whose cosmetic description as a limited  liability  company by virtue of the word “Limited” being added  does not  give Ruga Distributors  which is a business name any legal capacity  to sue  and be sued.  The presence of proper parties before a court is sine quo non exercise of jurisdiction of the court.  This court has no jurisdiction to hear and determine a suit filed by a non entity camouflaged as a legal entity by description only and not by law.  I am  fortified  by the decision in the case of Appex International Ltd & Anglo Leasing & Finance  International  Ltd V Kenya Anti-corruption Commission [2012] e KLR  citing with approval  Goodwill  & Trust Investment Ltd  & another V.  Will & Bush Ltd (Supreme Court of Nigeria) where the court held:

“It is trite law that to be competent and have jurisdiction over a matter, proper parties must be indentified before the action can succeed.  The  parties  to it must  be shown to  be proper  parties  whom  rights  and  obligations arising  from the cause  of action attach.  The question  of proper  parties is a very  important   issue which is a very  important  issue  which would  affect the jurisdiction of the suit  in limine.  When proper parties  are not before the  court, the  court lacks  jurisdiction to hear the  suit and where the court purports to exercise  jurisdiction which it  does not  have, the proceedings before it  and its judgment  will amount  to a nullity no matter  how well reasoned.”

The above decision is relevant   to this case.   Accordingly, I find the defendant’s prayer for striking out this suit in the alternative   to dismissing it for want of prosecution merited. In the end, this suit is struck out and dismissed with costs to the defendant.

Dated, signed and delivered in open court at Nairobi this 25th day of November, 2015.

R.E. ABURILI

JUDGE

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