Case ID:170149

Canuk Holdings Limited v Patrick t/a Lutha & Company Advocates & 2 others [2021] eKLR

Case Metadata

Case Number:

Civil Case 822 of 2010

Parties:

Canuk Holdings Limited v Patrick t/a Lutha & Company Advocates, Enock Tuitoek & Maurice Aldous Opar

Date Delivered:

22 Jan 2021

Case Class:

Civil

Court:

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

Case Action:

Ruling

Judge(s):

Maureen Akinyi Odero

Citation:

Canuk Holdings Limited v Patrick t/a Lutha & Company Advocates & 2 others [2021] eKLR

Court Division:

Commercial Tax & Admiralty

County:

Nairobi

Case Outcome:

Application 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

COMMERCIAL & TAX DIVISION

CIVIL CASE NO. 822 OF 2010

CANUK HOLDINGS LIMITED..................................................................PLAINTIFF

V E R S U S

PATRICK T/A LUTHA & COMPANY ADVOCATES...................1

ST

DEFENDANT

ENOCK TUITOEK.............................................................................2

ND

DEFENDANT

MAURICE ALDOUS OPAR..............................................................3

RD

DEFENDANT

RULING

1. Before this Court is the Notice of Motion Application dated

14

th

April, 2020

by which

CANUK HOLDINGS LIMITED

(the Plaintiff) seeks the following orders:-

1. SPENT

2. THAT an Order do issue vacating the stay orders granted by the Court pending inter parte hearing and determination of this application.

3. THAT the Honourable Court be pleased to issue an order dismissing the application dated 9

th

October 2015 for want of prosecution pending determination of this application and suit.

4. THAT an order do issue compelling the 2

nd

and 3

rd

Defendants to deposit the decree mental sum of Kshs. 60,360,570/- in court pending the hearing and determination of this application.

5. THAT this Honourable Corut be pleased to Order the 2

nd

and 3

rd

Defendants to deposit the 12% accrued interest on the decree sum from 9

th

October 2015 to todate pending the hearing and determination of the application.

6. THAT the costs of this application be provided for.

7. THAT such other and/or further relief be granted as this Honourable Court may deem fit and just to grant in the circumstances of this matter.

2. The application which was premised upon

Order 22 Rule 25, Order 51 Rule 1

of the

Civil Procedure Rules, Sections 1, 1A, 3A

and

63(e)

of the

Civil Procedure Act

and all other enabling provisions of the law was supported by the Affidavit of even date sworn by

ZOHER PIRBHAI

an employee of the Plaintiff Company.

3. The 2

nd

Defendant

ENOCK TUITOEK

opposed the application through his Replying Affidavit dated

8

th

July 2020

. The 1

st

Defendant

PATRICK T/A LUTHA & COMPANY ADVOCATES

and the 3

rd

Defendant

MAURICE ALDOUS OPAR

did not file any replies to the application. The application was canvassed by way of written submissions. The Plaintiff/Applicant filed its written submissions dated

10

th

August 2020

whilst the 2

nd

Defendant filed submissions dated

18

th

September 2020

.

BACKGROUND

4. The Plaintiff herein filed this suit against the Defendants way back in the

year 2010

. The suit was fully heard and on

21

st

September 2015

,

Hon. Justice Alfred Mabeya

delivered his Judgment in favour of the Plaintiff. The 2

nd

Defendant being aggrieved by the said Judgment filed the application dated

9

th

October 2015

seeking a stay of execution of the Judgment of

21

st

September 2015

. The Court did grant an interim stay of said Judgment and from that time to the present the 2

nd

Defendant has not taken any steps to have the application of

9

th

October 2015

set down for inter partes hearing. The Plaintiff/Applicant now prays that the application dated

9

th

October 2015

be struck out to enable it proceed to execute the Judgment of

21

st

September 2015

.

ANALYSIS AND DETERMINATION

5. I have carefully considered the submissions filed by both parties in this matter. The Plaintiff/Applicant submits that as a consequence of the interim stay of Judgment, the Defendant /Respondent has enjoyed an indefinite stay of the said Judgment from the

year 2010

to date. The Plaintiff submits that the failure by the Defendant to prosecute the application of

9

th

October 2015

or even to set the same down for mention is a move calculated to deny the Plaintiff the fruits of its Judgment.

6. On his part the 2

nd

Respondent submits that the stay was granted upon consent of

both

parties to allow the Plaintiff to file its Reply to the application of

9

th

October 2015

. That the Plaintiff has infact never filed any Reply to the said application and are thus equally responsible for the delay in hearing of said application. The 2

nd

Defendant submits that its application raises triable issues and prays that the same be heard and determined on its merits.

7. There can be no disputing the fact that an order of stay of execution of Judgment is not meant to be a permanent order. A stay of Judgment is normally granted pending the occurrence of some future event in this case pending the inter partes hearing of the application dated

9

th

October 2015

. In the application of

9

th

October 2015

, the 2

nd

Defendant sought to have the Judgment delivered by

Hon. Justice Mabeya

on

21

st

September 2015

set aside on grounds that the 2

nd

Defendant despite having filed a defence to the suit, did not participate in the trial and did not cross-examine any of the witnesses. The 2

nd

Defendant claims that it was never served with and did not receive the hearing notices hence his failing to participate in the trial. Undoubtedly the application raises triable issues which would warrant a hearing on merit.

8. On the other hand it is not in dispute that after obtaining the stay the 2

nd

Defendant went to sleep (obviously because the stay was in his favour) and took no steps to have his application set down for hearing and/or for mention. As a consequence the stay has persisted for five (5) years. Clearly the intention was to deny the Plaintiff the fruits of its Judgment.

9. In

NILESH PREMCHAND MULJI SHAH & ANOTHER T/A KETAN EMPORIUM –VS- MD POPAT & OTHERS (2016)eKLR

it was stated as follows:-

“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.”

10. Similarly in

MWANGI S. KIMENYI –VS- ATTORNEY GENERAL & ANOTHER MISC. CIVIL SUIT No. 720 OF 2009

the Court held that:-

“

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 plaintiff, the Defendant and any other third or interested party in the suit; lest justice should be placed too far away from the parties.” [own emphasis]

11. In my view the delay of

five (5) years

from

2010

to date in prosecuting the application dated

9

th

October 2015

has been inordinate and unwarranted and has caused great prejudice to the Plaintiff/Applicant. In the circumstances, I find that there is no justification for the orders of stay to remain in force. Accordingly I vacate the orders of stay of Judgment and dismiss the application dated

9

th

October 2015

for want of prosecution. The costs of this application are awarded to the Plaintiff/Applicant.

Dated in Nairobi this 22

ND

day of JANUARY, 2021.

…………………………………..

MAUREEN A. ODERO

JUDGE