[2016] KEHC 1571 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL CASE NO. 272 OF 2012

CHILD WELFARE SOCIETY OF KENYA

REGISTERED TRUSTEES..................................................... PLAINTIFFF

V E R S U S

NATION MEDIA GROUP

T/A NATION NEWSPAPERS.........................................1ST DEFENDANT

BILL KIRK ..................................................................... 2ND DEFENDANT

CAROLYNE KIRK.......................................................... 3RD DEFENDANT

RULING

1) The applicant, Nation Media Group Limited T/A NationNewspapers took out the motion dated 30th March 2016 where it

sought orders to wit:

1. THAT the plaintiff’s suit against the first defendant be dismissed for want of prosecution.

2. THAT the costs of this application and suit herein be awarded to the first defendant

2) In response the plaintiff/respondent filed the following grounds of opposition to resist the motion:

1. THAT the said application is premature as the suit has not gone through the pre-trial conference as required under Order 11 of the Civil Procedure rules 2010.

2. THAT the said application is contrary to the provisions of Order 17(2) of the Civil Procedure Rules 2010 and the court has not issued any notice to show cause for dismissal.

3. THAT the 1st defendant/applicant is as a consequence of the foregoing vexatious, scandalous and an abuse of the court process.

3) I have considered the grounds and facts as deponed in the supporting affidavit as well as the grounds of opposition. The applicant who appears in the suit as the 1st defendant has sought dismissal of the suit for want of prosecution. It has premised it’s application on the grounds that the plaintiff’s advocate has never and/or failed to set down the suit for hearing since the close of pleadings. It claims that the plaintiff has lost interest in prosecuting the suit. In its affidavit it deponed that the plaintiff filed the current suit on 5th June 2012 and it filed its memorandum of appearance on 9th August 2012 and its defence on 24th August 2012. It averred that it has been four (4) years since the cause of action arose and that it has been prejudiced by the delay occasioned by the applicant. It is for this reason that the applicant seeks for the action to be dismissed with costs for want of prosecution. The plaintiff on the other hand are of the view that the motion is vexatious, scandalous and abuse of the court process since it is premature given that the suit is yet to go through the pre-trial conference as required under Order 11 of the Civil procedure Rules and further that the application offends the provisions of Order 17(2) of the Civil Procedure Rules since the court has not issued any notice to show cause for dismissal.

4) Looking at the court record, it is evident that the plaintiff filed its plaint on 5th June 2012. The 1st defendant then filed its defence on 24th August 2012. No further pleadings were filed by the remaining 2nd and 3rd defendants. However, it is clear that the plaintiff had a challenge in serving the plaint on the 2nd and 3rd defendants who they claim reside in the United kingdom. They therefore filed an application dated 6th August 2013, where they sought to have the 2nd and 3rd defendants served through substituted service. The application was heard and Lady Justice Ang’awa Judge (rtd)ruled on the matter and issued orders on 1st November 2012 to the effect that the service be effected by personal service upon the 2nd and 3rd defendant. She held inter alia:

"That the documents so served must be sealed by the High Court for use outside Kenya. That there be 60 days to enter appearance and file defence by 2nd and 3rd parties upon service. That Order 5 rule 29 deals with the service process where the countries are foreign and no part of the common wealth and this will not apply herein. Costs be in the cause."

5) Despite that order, the 2nd and 3rd defendants did not put in their defences and have not done so to date. However, the plaintiff filed another application dated 20th January 2014 where Justice rtd. Onyancha upon hearing the application allowed the prayers sought which prayers included extension of the validity of the summons to enter appearance for a further 12 months from the date the, which order was issued on 17th June 2014. The lapse of 12 months as a result fell on 18th June 2015. The 2nd and 3rd defendant were therefore required to have put in their defence by 18th June 2015, but they didn’t. It can therefore be assumed that pleadings closed on 18th June 2015.

6) The applicant filed the current application which is the subject of this ruling on 1st April 2016, which is approximately 9 months after close of pleadings. The question arising therefore is whether the delay is inordinate. The plaintiff argues that this application is premature since the suit has not gone through pre-trial conference as required under Order 11 of the Civil Procedure Rules and that the application contravenes Order 11 (2) of the civil Procedure Rules. Order 11 of the Civil Procedure Rules which provides for pre-trial directions and conferences demands that after the close of the pleadings, the parties have ten (10) days to complete, file and serve the pre-trial questionnaire. The court is also required to convene a case conference within thirty (30) days after the close of pleadings. Since 18th June 2015, the plaintiff had 10 days to put in the pre-trial questionnaire which it hasn’t, and it is clear that no further steps have been taken by the plaintiff since the close of pleadings.

7) The plaintiffs did not give any reason to justify the delay in prosecuting their suit. The plaintiff has also not invited the defendants to fix mutual hearing dates. There has been inaction in the file for a while now. The plaintiff has not been vigilant in pursuing this matter as required to show that the delay was not inordinate and if it was, that its excusable. In the case of Jason Mungai Kamau V Jane Kamau & 4 others (2008) eKLR, the court stated that:

"As correctly submitted by Mr. Muchira, there is inordinate and unexplained delay at every stage of the prosecution of the appeal as well as the instant application. The instant application was brought 5 years after the event and there is absolutely no explanation for the delay. The applicant is obviously indolent. This court does not aid the indolent."

In the case of Utalii Transport Company Limited & 3 others vs NIC Bank & Another (2014) eKLR that:

‘’It is the primary duty of the Plaintiffs to take steps to progress their case since they are the ones who dragged the Defendant to court’’.

However, I understand the challenge the plaintiff has had in serving the 2nd and 3rd defendants who are presently not in the Country. In the interest of justice and to avoid taking any draconian measures that will drive the plaintiff from the judgement seat, I will exercise my discretion and allow the plaintiff to prosecute its suit within 90 days failure to which the suit will stand dismissed.

8) In the end, I hereby dismiss the application and award the 1st defendant costs of the motion to reward their spirited fight to have the suit out of their way.

Dated, Signed and Delivered in open court this 28th day of October 2016.

J. K. SERGON

JUDGE

In the presence of:

......................................................... for the Plaintiff

.......................................................... for the Defendant