[2017] KEHC 10085 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

COMMERCIAL AND TAX DIVISION

CIVIL CASE NO. 107 OF 2012

ASSEMBLED ENTERPRISES LIMITED.......................................................PLAINTIFF

VERSUS

NATIONAL WATER CONSERVATION & PIPELINE CORPORATION....DEFENDANT

RULING

[1]The Notice of Motion dated 3 April 2017 was filed herein on 11 April 2017 by the Defendant for orders that the suit be dismissed for want of prosecution and that the costs of the application and the suit be awarded to the Defendant. It was filed under Section 3A of the Civil Procedure Act, Chapter 21 of the Laws of Kenya, and Order 9 Rule 13 of the Civil Procedure Rules, 2010. The grounds proffered by the Defendant in support are that, since 2013 when this matter was last in Court, the Plaintiff has not made any attempts to fix it for hearing; and that this delay of 4 years is not only inordinate but also inexcusable. It was further contended that the delay has greatly prejudiced the Defendant and therefore that it would be in the interest of justice that this litigation be brought to an end.

[2] The application was premised on the affidavit of Mr. Eric K. Mutua, Advocate, who averred that this suit was filed on 2 March 2012, and that the Defendant filed its Memorandum of Appearance and Defence on 19 March 2012; whereupon the matter was set down for hearing on 14 April 2013 when it was stood over generally. He averred that since then, the Plaintiff has not taken any steps to set the suit down for hearing; and that it would only be just and equitable to have the suit against the Defendant dismissed for want of prosecution.

[3] In response to the application, the Plaintiff's Managing Director, Patrick Kamau Gachanga, deposed that sometimes in the year 2012, he instructed Ashfords and Co. Advocates to institute this suit on behalf of the Plaintiff; and that from 2014, he noticed shortcomings in terms of communication on the progress of the suit from the said Advocates, thereby prompting him to make telephone calls and personal visits to their lawyers office. In spite of assurances that all was well, he finally took a decision to withdraw instructions from Ashfords and Co. Advocates, and instructed the law firm of Murithi Kimathi & Karera Advocatesto come on record in their stead; and that it was then that he got to learn from the new Advocates that Mr. Ashford Muguku had been ailing since 2014, and was thus unable to discharge his duties as an Advocate for much of the period in issue. Documents were annexed to the Replying to show that Mr. Mugwuku had been ailing; and to also demonstrate that the parties had at some point in time attempted to have the matter settled out of court. Mr. Gachanja averred that his new lawyers are ready to prosecute this case with due expedition and therefore urged the Court to afford the Plaintiff an opportunity to ventilate its cause of action to its logical conclusion; contending that it would suffer great prejudice if the suit were to be dismissed as proposed by the Defendant.

[4] Pursuant to the directions given herein on 30 May 2017 the parties filed and exchanged their written submissions in respect of the application. Mr. Mutua, Learned Counsel for the Defendant filed his written submissions on 20 July 2017, arguing that the Replying Affidavit is an afterthought, designed to justify the inordinate delay in the prosecution of this suit. He submitted that it was not disputed that the Plaintiff had not taken any step to prosecute this matter for the past four years. Counsel further submitted that it is the primary duty of the Plaintiff to take steps to progress its case; and that the reasons advanced by it are not sufficient and cannot constitute a reasonable explanation for non-prosecution of this suit; and that, in any event, the Defendant was not notified of the circumstances occasioning the delay in prosecuting this suit.

[5]With regard to the Medical Report in respect of the Plaintiff's erstwhile Advocate, Mr. Ashford Muriuki Mugwuku (marked Annexure PKG 1 to the Replying Affidavit) it was the submission of Mr. Mutuathat the said report falls short of giving comprehensive details of the period of sickness; and that therefore it was only prepared for the sole purpose of misleading the Court. He added that, from the letterheads of the said firm of advocates, it was evident that there were three other Advocates in the firm; and there was no explanation as to why the other Advocates could not handle the matter, if indeed Mr. Mugwuku had been unwell as alleged. In connection with the letter marked Annexure PKG 2 to the Replying Affidavit, it was the submission of Counsel for the Defendant that it was evident that it had no acknowledgement court stamp and cannot be said to have been presented for action at the Court Registry. It was thus the contention of the Defendant that the Plaintiff's inertia runs contrary to the Overriding Objective of the Civil Procedure Act as set out in Sections 1A, 1B and 3A thereof, and hence this suit ought to be dismissed with costs on that account.

[6] The Plaintiff's written submissions, filed herein on 21 June 2017 comprise a reiteration of the explanation offered in the Replying Affidavit for the delay. It was further submitted by Counsel for the Plaintiff that this being a suit for the recovery of monies for goods sold and delivered to the Defendant, it would suffer great prejudice if the suit were to be dismissed as it stands to lose the entire sum of Kshs. 5 million claimed herein. Thus the Plaintiff urged the Court to find that the delay, if any, was not intentional and that, in any event, the same had been satisfactorily explained. It was postulated that the mistake of the Plaintiff's erstwhile Counsel should not be visited upon it as a client; and that the delay has not caused any prejudice to the Plaintiff. Counsel relied on Utalii Transport Company Limited & 3 Others vs. NIC Bank & Another [2014] eKLR with regard to the principles which have been developed by the Courts over time to guide the exercise of discretion in such applications.

[7] Although the application is expressed to be brought under Order 9 Rule 13of the Civil Procedure Rules, the applicable law, granted the orders sought, is Order 17 Rule 2of theCivil Procedure Rules, which provides thus:

"(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 it 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 sub-rule (1);

(4) The Court may dismiss the suit for non-compliance with any direction given under this order."

[8]It is now settled that the applicable principles, which were restated in the case of Utalii Transport Company Limited & 3 Others Vs NIC Bank Limited & Another [2014]eKLR are:

[a] Whether there has been inordinate delay on the part of the Plaintiff in prosecuting the case.

[b] Whether the delay is intentional and therefore inexcusable.

[c] Whether the delay is an abuse of the process of the Court.

[d] Whether the delay gives rise to substantial risk to fair trial or causes serious prejudice to the Defendant.

[e] What prejudice the dismissal will occasion to the Plaintiff.

[f] Whether the Plaintiff has offered a reasonable explanation for the delay.

[g] Even if there has been delay, what does the interest of justice dictate?

[9] The court record confirms that the suit was filed herein on 22 February 2012 and not 2 March 2012 as deposed to by Counsel for the Defendant; and that after the disposal of the first application for Summary Judgment, dated 1 March 2012, the suit was certified ready for hearing on 27 September 2012 and fixed for hearing for 11 April 2013. However, hearing could not proceed as scheduled for the reason that the Plaintiff's witness was then out of the country. The Court also noted that the parties were yet to file a List of Agreed Issues. Accordingly, and directions were given for compliance and thereafter for a date to be taken at the Registry. No action was thereafter taken by either party to progress the suit, and consequently, the matter was listed suo motu by the Court for dismissal on 19 June 2015, under Order 17 Rule 2 of the Civil Procedure Rules. However, instead of the intended dismissal, the Court gave directions to the Deputy Registrar to notify the parties to file the Statement of Agreed Issues within the next 30 days. It is manifest therefore that by 11 April 2017 when the instant application was filed, a period of more than 12 months had elapsed since the last step was taken in the matter; the last step being the Court Order of 19 June 2015.

[10] In the case of Ivita vs Kyumbu [1975] eKLRthe Court stressed the significance of considering each case on the basis of its own facts, even as the Court seeks to be guided by the aforementioned principles. The Court stated that:

" 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. Thus, even if 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."

[11]The Plaintiff has endeavoured to explain the delay in the prosecution of this case in the Replying Affidavit. Its explanation was that its Counsel fell sick and a report to that effect was exhibited as an Annexure to the Affidavit of the Plaintiff's erstwhile Advocate, Mr. Ashford Mugwuku Muriuki, to show that he had been unwell since 2014. Although the Defendant discounted that explanation, there is nothing to show that it was a fabrication as no rebuttal evidence was availed. Moreover, the Defendant did not seek to have the deponent, Mr. Muriuki cross-examined to test the veracity of his deposition. Thus, it is my finding that a plausible explanation has been offered for the delay in the prosecution of the case between 19 June 2015 and 11 April 2017 when the instant application was filed; and that no prejudice will be suffered by the Defendant which cannot be ameliorated by an award of costs.

[12]In the result, I would exercise my discretion herein in the Plaintiff's favour and afford it a chance to prosecute this case for a determination on the merits. Thus, the Defendant's application dated 3 April 2017is hereby dismissed, with an order that costs thereof be paid by the Plaintiff.

It is so ordered.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 3RD DAY OF NOVEMBER, 2017

OLGA SEWE

JUDGE