[2014] KEHC 4275 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA NAIROBI

CIVIL SUIT NO. 1117 OF 2004

CITY CHICKEN FARM DEVELOPMENT

AND SECURITY COMMITTEE (SUING THROUGH)

DAVID MUTITU KAMAU CHAIRMAN

SAMUEL MWANGI SECRETARY

(TREASURER………………..PLAINTIFFS/RESPONDENTS

VERSUS

GEORGE KANYONGO GITHUKU……….1ST DEFENDANT/APPLICANT

FRANCIS KIRIMA M’IKUNYUA………….2ND DEFENDANT/APPLICANT

RULING

Before me is an application dated 11th August 2010. It is a Notice of Motion brought under Order XVI Rule 5(d) of and Order L Rule (1) of the Civil Procedure Rules. The defendants/applicants seek the following orders;

That the suit be dismissed for want of prosecution.

That costs of the application of the entire suit be granted to the defendants/applicant.

The applicant is based on 3 grounds on the face of the application that; the plaintiff has failed to take any step on this matter for two years, that the matter was the last in court on 23/7/08 when it was stood over generally and that it is in the interest of justice that the orders ought be granted.

The application is supported by the affidavit of Njoroge Kibatia sworn on the 11/8/10. He deposes that the suit was filed on the 21/10/14, together with an application filed under certificate of urgency , that they filed the notice of appointments on the 9/11/04 and 15/11/05, replying affidavit to the application on the 7/2/07 and defence on the 2/7/07. That the plaintiffs’ application came up for hearing on several occasions and was eventually withdrawn on the 5/7/07. That since then the plaintiffs have not taken any step in the prosecution and finalization of the matter. That they set down the suit for hearing on the 8/10/09 but the suit was not listed for hearing; that they have invited the plaintiffs on several occasions to have the matter fixed for hearing but the plaintiffs has failed to send their representative. That it is well over 6 years since the suit was instituted. That the plaintiffs are not desirous of presenting the suit and that it is therefore in the interest of justice that the suit be dismissed for want of prosecution; that the defendants continues to suffer prejudice in deferring a suit that is not being prosecuted.

John Muriithi the Secretary of the plaintiffs/respondents swore an affidavit dated the 11th of October 2010. He deposes that they are desirous to resolve the suit, that they did attend court severally but every time the defendant applied for an adjournment, that the defendants decided to stop subdivision and sale and development of the suit premises as they continue with the suit and for the sake of good neighborliness they halted the court process to avoid further acrimony amongst the residents. That they are ready to continue with the suit as the defendants have decided to continue with the subdivisions, development and sale of the plots.

In a supplementary affidavit Mr. Njoroge Kibatia challenges Mr. John Muriithi authority to depose the affidavit on behalf of the members of the plaintiffs/respondents; and deposes further that the allegations on the sub-divisions have not been supported by anything, that the failure by the plaintiffs to prosecute the present suit is not attributable to any representation on conduct by the defendants.

I have read the affidavits filed together with the submissions ,I have also gone through the court record. The applicant relied on the following cases; Ivita Vs Kyumbu (1984) KLR44 where Chesoni J held that.

“The test applied by the courts in an application for the dismissal of a suit of want of prosecution is whether the delay is prolonged and inexcusable, and if it is, whether justice can be done despite the delay. Thus even if the delay is prolonged, if the court is satisfied with the plaintiff’s excuse for the delay, and that justice can still be done to the parties, the action will not be dismissed”

The plaintiff also relied on the case of Fitzpatrick Vs. Batger &Co. Ltd (1967) 2 ALL ER 657 at page 658 where Lord Denning held,

“ it is impossible to have a fair trial after a long time. The delay is far beyond anything which can excuse. The action has gone to sleep for nearly two years. It should now be dismissed for want of prosecution”

The applicant further relied on the following cases; Nilani Vs. Patel 1969(E.A), Paxton Vs. Allsopp (1971) 3 ALL ER 370 and Allen Vs. Sir Alfred Mc Alpine & Sons Ltd (1968) 1 ALL ER 657. In this latter case Lord Denning held that;“ the delay of justice is denial of justice”.

The respondent argues in his submission that the application is defective as the applicant has based the application on the revoked Civil Procedure Rules. This in my view is cured the provisions of Article 159 2(d) of the Constitution that states that “ Justice shall be administered without undue regard to procedural technicalities”. Counsel for the respondent reiterates what is deponed in the affidavit of Mr. John Muriithi.

The test to be applied that I have to consider are laid in the case of Ivita V. Kymbu (Supra).From the Court recordthe suit was filed on 2004. The one application that was filed with the plaint was adjourned severally between 23/11/04 to 23/11/07 when the Court gave the last adjournment. On the 5/7/07 parties appeared before Justice Rawal, and took directions on the hearing of the suit. The suit was thereafter fixed for hearing on the 23/7/08 when it was adjourned on the plaintiff counsels application. Thereafter the present application was filed in Court. The suit was not heard on the 29/3/2011 when it was fixed for hearing. It was listed before me on the 24/11/11 when I gave orders that parties take a date to highlight their submissions as the applicant was not in court then. The matter came before me on the 2011. Who then is to blame for the delay? As was held in the case of Nilani Vs. Petal (Supra),

“it is only too trite to say that as in every civil suit, it is the plaintiff who is in pursuit of a remedy that he should take all necessary steps at his disposal to achieve an expeditious determination of his claim should not be guilty of laches”

I do agree that the delay of justice is a denial of justice. However it is apparent that although there has been a delay in prosecuting the suit, the plaintiff at one time decided to take no action in order to promote good neighborliness. The subject matter of the suit is a piece of land the plaintiffs claim that defendants have subdivided in smaller units and offered for sale without the necessary consents. They have sought an injunction to stop the defendants subdividing the plots. It is apparent that the parties are neighbors. Would dismissing this suit now be of any help to the parties? Land is an emotive issue in this country. Good neighborliness is also very important if we are to stay as united Nation. Efforts must be made to ensure that good neighborliness is promoted. The plaintiff has tried to do so. Although it has taken time to prosecute the suit I will give the plaintiff a chance to prosecute their suit. The plaintiff’s delay in prosecuting the suit can be excused. Justice needs to be done for all the parties.

I therefore order that the suit will not be dismissed. Let the suit be set down for hearing at the earliest available time in the ELC division. Costs shall be in the cause.

Orders accordingly.

Dated, signed and delivered this 15th day of April 2014.

R. E. OUGO

JUDGE

In the presence of:

….………………………………………….…..PLAINTIFFS/RESPONDENTS

…………………………………….………….1STDEFENDANT/APPLICANT

……………………..……………………….2ND DEFENDANT/APPLICANT

……………………….………………………………………..COURT CLERK