Domalco Ltd v Triple Tee Enterprises [2025] KIHC 63; Civil Case 63 of 2017 (22 September 2025)

IN THE HIGH COURT OF KIRIBATI

CIVIL JURISDICTION

High Court Civil Case 63 of 2017

Between: Domalco Limited
Plaintiff

AND: Triple Tee Enterprises Defendant

Date of hearing: 21 August 2025
Date of judgment: 22 September 2025

Appearances: Ms Botika Maitinnara for the Plaintiff

Ms Elsie Karakaua for the Defendant

R U L I N G- striking out

1. The case was filed on June 19, 2018. The defendant submitted their defence on February 21, 2019. The court issued the Order on Directions on May 20, 2019. The parties did not comply with the Order on Directions since the day it was issued.
   
2. Today, the court listed the case for striking out because there has not been any action or movement for more than 12 months. The case has been left idle for 6 years. This is the registrar’s initiative pursuant to Order 62 Rule 1 of the High Court Civil Procedure Rules.
   
3. The defendant supports the motion to strike out because of the unreasonable delay caused by the plaintiff. The defendant, through Counsel, submits that they still have not received any affidavits in support of the case and any invoices from the plaintiff since the court issued its order on directions in May 2019.
   
4. Counsel for the plaintiff, on the other hand, argues that the case should not be struck out. Her instruction from her client in Fiji is for all their cases to be scheduled for a hearing at the same time, so he can come over to attend the hearings.
   
5. The plaintiff needs to explain to this court why the case should proceed despite the six-year delay. No reasons for the delay have been provided. The only information given by his lawyer is the request for the plaintiff’s cases to be scheduled for hearing simultaneously and that the plaintiff should attend the hearings.
   
6. This case is not yet ready for hearing. The plaintiff must first follow the court's directions issued on May 20, 2019. The first of these directions involves the discovery and inspection of case documents, which was supposed to be completed within 14 days of the Order on Directions, dated May 20, 2019. This explains why the defendant had not been served with any invoices or affidavits by the plaintiff because discovery has not been completed.
   
7. South Pacific Marketing (NZ) Ltd v Maile [1987] SBHC 12; SILR 81 (9 November 1987) is where the Solomon Islands court states that the delay inherently entails the risk of prejudice, as the witness may pass away or become unavailable, and memories may fade, thus complicating the pursuit of a just decision.
   
8. Having considered both arguments, I am not convinced that the case should be struck out. Although the plaintiff did not provide any reasons for the delay, the defendant, on the other hand, did not present evidence to this court to demonstrate that the delay would pose a substantial risk of prejudice due to fading memories of witnesses or the unavailability of witnesses, among other factors.
   

Outcome

9. For the reasons stated above, this case is not struck out.
   
10. To avoid any more delays, this Court orders the following;
    
    1. The plaintiff must comply with the Order on Directions dated May 20, 2019, as of the date of this judgment.
       
    2. The defendant will also comply with the Order on Directions.
       
    100. The plaintiff must request a Pre-Trial Conference date within 60 days of this judgment date for the parties to set a hearing date, or the case will be struck out.
         

Order Accordingly.

THE HON TETIRO SEMILOTA MAATE MOANIBA

Chief Justice