[2017] KEHC 2053 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAKURU

HCA 293 OF 2011

CANIFA LUKA MUSIGARI ............................ APPLICANT

-VERSUS-

ISSA KHALID ....................................... 1ST RESPONDENT

DUKE NYAMBUTI GEKARA ........................... 2ND RESPONDENT

RULING

1. The application before me dated 25th November 2016 is filed by the defendants in this case. They seek that the suit be struck out for want of prosecution on grounds that there has been inordinate delay in the prosecution of the suit and that the delay has been prejudicial to the defendants.

2. The supporting affidavit is sworn by one Ann Odonyo a Deputy Claims Director at Directline Assurance Company Ltd, the insurers of the accident motor vehicle KAZ 289R. She deposes that the plaintiff filed suit vide plaint dated 6th September 2011 claiming damages for an accident allegedly involving the said motor vehicle on 8th November, 2009 along Narok – Mai Mahiu Road. That the defendants entered defence on 14th February 2012 and were subsequently served with a hearing notice for 14th October 2014 but that the matter has never proceeded since that date. That the plaintiff filed an application dated 18th July 2016 some five years later to amend the plaint which application was dismissed for want of prosecution on 15th November 2016.

3. The application is opposed by the respondent vide a replying affidavit dated 16th January 2017 and filed on 17th January, 2017. The applicant filed submissions dated 27th January 2017 on 30th January, 2017. They submit that Order 17 Rule 2 of the Civil Procedure Rules provides for dismissal of suit for want of prosecution. They submit that the rationale behind the civil procedure rules on expeditious prosecution and determination was to expedite justice for both parties and not just the plaintiff. They cite Fitpatrick Vs Batger & Co (1967) ALL ER 657 as quoted inEuro Bank Ltd Vs Shah Munge & Partners (2016) eKLRin support of this proposition. They further submit that there was no discernible justification for the delay but merely excuses reflected in the respondents Replying Affidavit and a lack of interest to expeditiously prosecute the case. They contend that failure by the plaintiff to set down the suit for hearing has no justification.

4. The respondent’s submissions dated 31st January 2017 were filed on 7th February 2017. They submit that the application was a delaying tactic meant to deny the plaintiff justice. That the application for dismissal was meant to force the plaintiff to accept a low offer for settlement. That failure of the plaintiff to attend court on 15th November 2016 was occasioned by his mobility challenges. They urge the court to have the matter proceed to conclusion in the interest of justice.

5. The issue before the court is whether the plaintiff’s suit should be dismissed for want of prosecution. As correctly submitted by the applicant, the overriding interest in the Civil Procedure Act is to ensure that suits are promptly and justly disposed off. (See Deepak, Chamanlal Kamani & Another Vs KenyaAnti-corruption Commission & 3 others, Court of Appeal No.152 of 2009. The principles to be applied when considering dismissal for want of prosecution have been enunciated in several decisions. They are aptly described in Ivita Vs Kyumbu (1984) KLR 441, and Utalii Transport Company Ltd & 3 others Vs NIC Bank Ltd & another 2014 eKLR.

They are:

i. whether the delay is inordinate

ii. whether the delay is intentional, contumelious and therefore inexcusable.

iii. whether it is an abuse of the court process

iv. whether the delay gives rise to substantial risk to the defendant.

v. whether the dismissal will occasion prejudice to the plaintiff

vi. whether the plaintiff has reasonable explanation for the delay, and;

vii. whether the interests of justice can still be served despite the delay.

See also Euro Bank Ltd Vs Shah Munge & Partners 2016 eKLR,

6. The applicant contends that the respondent has not taken steps to prosecute the case which was filed way back in 2011. That it has not set down the case for hearing. The respondent on the other hand contends that the case was active in court in 2014 when they could not get dates as the court diary was closed.

7. I have perused the record to understand what actions if any the parties have taken so far to move forward their case. There is no contention that the suit was filed in 12th October 2011. The defendant entered appearance on 25th January 2012 and reply to defence on 23rd March 2012. There was no activity in 2013 except for an appearance on 4th December 2013 when the plaintiff took a date for directions on 21st February 2014. On that date the plaintiff appeared in court while the defendant was absent. The court directed the plaintiff to take a date at the registry.

8. The plaintiff duly complied with the court’s directions and took a hearing date of 14th October 2014 when he duly appeared ready to proceed. The defence counsel was however not ready and caused an adjournment with the court directing the parties to take a date at the registry. There was no activity in 2015 but in 2016 the plaintiff filed an application to amend the plaint and proceeded to take a date for the said application and was given 18th July 2016. On the said date none of the parties appeared occasioning the dismissal of the plaintiff’s application.

9. I have painstakingly perused the record as indicated above. The record shows that the plaintiff has consistently sought to have his case proceed. This is contrary to the assertion by the defendant/respondent. I am unable to hold unavailability of hearing dates in the court diary against the plaintiff. I find that the record shows that the delay is excusable. Besides, on the day that the court was ready to proceed with the trial, the defendant’s counsel occasioned an adjournment.

10. The defendant stated in both the replying affidavit and the submissions that they would suffer prejudice if the suit was not dismissed. They did not however show the court in what way they would. It is my considered view that any prejudice arising from sustaining the suit therefrom would be compensable by costs if the court were to find the defendants not culpable after trying the case on merits.

11. In the premises, I find that the order that commends itself to me is to decline to dismiss the suit but direct, as required by Order 17 Rule 2 (2), the expeditious hearing of the substantive suit. The plaintiff shall set down the case for trial within 45 days, failing which the suit shall stand dismissed.

12. The costs of this application shall be in the cause.

Ruling delivered, dated and signed in open court

this 12th day of October 2017

…............................

R. LAGAT KORIR

JUDGE

In the presence of:

C/A Emojong

Mr. Mburu for applicant

Mr. Kambo holding for Mr. Nyasonge for 1st respondent

Mr. Kambo holding for Mr. Nyasonge for 2nd respondent