Bantus Investment Limited v Kenya Wildlife Service (Environment & Land Case 239 of 2011) [2023] KEELC 197 (KLR)

though KWS filed their Replying Afidavit in the name of Joycelyn Makena in Court on September 30, 2011 in response to the Plaintifi's Notice of Motion application dated August 10, 2011 the Plaintifi never relisted their Notice of Motion Application dated August 10, 2011 and filed under Certificate of Urgency for hearing and final determination as directed in the Court Order issued on August 11, 2011. That soon after filing this suit under a Certificate of urgency the Plaintifi Company went to sleep for over 5 years and that is when the Court suo moto on August 2, 2016 issued a Notice to Show Cause (NTSC) upon the Parties and to which NTSC the Plaintifi Company through its lawyer Charles Waweru Gatonye swore an afidavit on August 25, 2016. Attached and marked "BM2" is a copy of the Notice to Show Cause, and the top page of the said Notice to Show Cause Afidavit. 4 That on August 31, 2016 the Court inspite of stifi opposition from KWS proceeded to set aside the Notice to Show Cause on terms to be complied with by the Plaintifi/Applicant within 45 days therefrom which compliance the Plaintifi failed to adhere to resulting in the case being dismissed for non-compliance vide the Court's Order of August 31, 2016. Attached and marked "BM 3" is a true copy of the said Court Order evidencing the fact that the dismissal order was made in the presence of the Plaintifi's lawyer Mr Kiarie for Waweru Gatonye & Co Advocates, and therefore the Plaintifi was duly represented in Court, and that the Court after listening to the Plaintifi's Lawyers plea/explanation or otherwise still went ahead to dismiss the cases after finding that the explanations/excuses lacked merit. That on January 18, 2017 the Plaintifi's lawyers filed an application dated January 13, 2017 seeking a review of the Orders of the Court made on August 31, 2016 and November 22, 2016, dismissing the Plaintifi's suit wherein it was expressly admitted that there was non-compliance of the Court's Orders of August 31, 2016. Attached and marked "BM 4" is a copy of the Notice of Motion application only. That they strongly resisted the Plaintifi's Notice of Motion application dated January 13, 2017 by filing a replying afidavit on March 13, 2017 a copy of its top page only is attached and marked "BM 5". That on March 8, 2018 the Court allowed the Plaintifi's Notice of Motion application dated January 13, 2017 in efiect reinstating the Plaintifis Suit. 5 That once again the Plaintifi Company returned to sleep and only woke up 4 years later when vide a letter dated April 27, 2022 the firm of Mogaka Omwenga & Mabeya Advocates wrote to Waweru Gatonye Company Advocates their letter dated April 27, 2022 appearing as No 2 in the Plaintifi's current application's exhibits. That it is clear that it is in the year 2022 that the Plaintifi's new lawyers stumbled across the fact that the Suit had been dismissed on November 2, 2018. For the past 4 years from March 8, 2018 to April 27, 2022 the Plaintifi had once again lost interest in the Suit and it therefore matters not that the Suit was dismissed on November 2, 2018 purportedly without notice to them because they were at any rate not keen on prosecuting their Suit. 6 That on October 12, 2018 the Court once again issued a Notice to Show Cause (NTSC) to the parties why this suit should not be dismissed for want of prosecution. The Notice to Show Cause (NTSC) come up on November 2, 2018 as per copy of the said document which we duly received through the post ofice as can be seen from the exhibit attached and marked as "BM 6" being a copy of the NTSC and posted envelope. 7 That it has taken the Plaintifi over 3 years from the time the dismissal order of November 2, 2018 was made to file this application. It is instructive to note that {though filed on August 24, 2022 the Plaintifi's Notice of Motion application dated August 8, 2022 and Notice of Change of Advocates bearing the same date were both served on their Advocates on October 6, 2022 which was 43 days later. Attached and marked "BM 7" are top copies of the said documents. That the Plaintifi Company has not shown any proof of their interest in following up their case with any of their previous lawyers say through letters/emails enquiring on the progress of their case or even their representatives attendance at their lawyers ofices enquiring on the progress of their case. Indeed Mr Torriani has described himself https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/197/eng@2023-01-26 2

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as a resident of Diani within Kwale County which is not far from Mombasa City which should have made it easy to visit their lawyers. Not even a telephone enquiry is alluded to. 8 This court has considered the application and the submissions therein. I have perused the court record and find that on October 12, 2018 the Court issued a Notice to Show Cause (NTSC) to the parties why this suit should not be dismissed for want of prosecution. The Notice to Show Cause (NTSC) come up on November 2, 2018 and the suit was dismissed as both parties were absent. This application to set aside those orders was filed on August 24, 2022 and the Plaintifi's Notice of Motion application is dated August 8, 2022 this is over 3 years from the time the dismissal order of November 2, 2018 was made to file this application. In the case of Ivita vs Kyumbu(1984) KLR 441 the court held as follows: 9 The test is whether the delay is prolonged and inexcusable and, if it is, can Justice be done despite such delay”. 10 In the case of Mwangi S Kimenyi vs Attorney General and Another, Civil Suit Misc No 720 of 2009, the court restated the test as follows:- 11 "1 When the delay is prolonged and inexcusable, such that it would cause grave injustice to the one side or the other or to both, the court may in its discretion dismiss the action straight away. However, it should be understood that prolonged delay alone should not prevent the court from doing justice to all the parties- the plaintifi, the defendant and any other third or interested party in the suit; lest justice should be placed too far away from the parties. 2. Invariably, what should matter to the court is to serve substantive justice through judicious exercise of discretion which is to be guided by the following issues; 1) whether the delay has been intentional and contumelious; 2) whether the delay or the conduct of the Plaintifi amounts to an abuse of the court; 3) whether the delay is inordinate and inexcusable; 4) whether the delay is one that gives rise to a substantial risk to fair trial in that it is not possible to have a fair trial of issues in action or causes or likely to cause serious prejudice to the Defendant; and 5) what prejudice will the dismissal cause to the Plaintifi. By this test, the court is not assisting the indolent, but rather it is serving the interest of justice, substantive justice on behalf of all the parties." In the case of Utalii Transport Company Ltd & 3 Others vs NIC Bank & Another (2014) eKLR, the court held that it is the primary duty of the Plaintifis to take steps to progress their case since they are the ones who dragged the Defendant to court. The decision on whether the suit should be reinstated for trial is a matter of justice and it depends on the facts of the case. In Ivita vs Kyumbu (1984) KLR 441, Chesoni J as he then was, stated that the test is whether the delay is prolonged and inexcusable and if justice will be done despite the delay. Justice is justice for both the Plaintifi and the Defendant. In Essanji & Another vs Solanki (1968) EA 218 it was observed: "The administration of justice should normally require that the substance of all disputes should be investigated and decided on their merits and that error and lapses should not necessarily debar a litigant from the pursuit of his rights.” https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/197/eng@2023-01-26 3

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12 In the present case one would ask whether this error or blunder by the advocate on the delay be visited upon the client. The courts have adopted an equitable approach in addressing this issue. In the case of Philip Chemwolo & another vs Augustine Kubede (1982-1988) KAR 103, the stated that; "Blunders will continue to be made from time to time and it does not follow that because a mistake has been made that a party should sufier the penalty of not having his case heard on merit. 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 the purpose of imposing discipline.” 13 In Belinda Murai & 9 others vs Amos Wainaina (1979) eKLR, the court stated that; 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. It is known that courts of justice themselves make mistakes which is politely referred to as erring in their interpretation of laws and adoption of a legal point of view which courts of appeal sometimes overrule.” 14 The test for consideration for reinstatement of a suit that has been dismissed for want of prosecution is whether the delay is prolonged and inexcusable; whether justice can still be done despite the delay; and whether the Plaintifi or the Defendant will be prejudiced by reinstatement of the suit. In the instant case it appears that there was some miscommunication between the Applicant and their former advocate hence the change of advocates. From perusal of the court records there is no evidence of service to the previous advocates and it would be possible the notice was not served. Land matters are emotive and I find the excuse for the delay plausible and justice should be done despite the delay. I find this application has merit and I grant it as prayed. Costs to be in the cause. It is so ordered. DELIVERED, DATED AND SIGNED AT MOMBASA THIS 26TH DAY OF JANUARY 2023. N.A. MATHEKA JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/197/eng@2023-01-26 4

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