[2017] KEHC 1366 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL CASE NO. 64 OF 2014

ELIJAH KINYUA NG’ANGA

aka GENERAL BAHATI...............................................1ST PLAINTIFF

MWAI WA MUTHIGI....................................................2ND PLAINTIFF

WAWERU MUGO.........................................................3RD PLAINTIFF

MUIRURI NJUGUNA

aka GENERAL MUIRURI NJUGUNA..........................4TH PLAINTIFF

-V E R S U S –

GITU WA KAHENGERI...........................................1ST RESPONDENT

JACOB NYAGA......................................................2ND RESPONDENT

MAU MAU WAR VETERANS ASSOCIATION.....3RD RESPONDENT

THE REGISTRAR OF SOCIETIES..........................4TH RESPONDENT

PETER NZUKI NDETI ..............................................5TH RESPONDENT

RULING

1) When this suit came up for substantive hearing on 17. 10. 2017, the same was dismissed for lack of evidence and want of attendance on the part of the plaintiffs. The plaintiffs have now taken out the motion dated 31st October 2017 in which they sought for the dismissal order to be set aside and for the suit to be reinstated for hearing. The aforesaid motion is supported by the affidavit of Erick K. Mutua sworn on 31. 10. 2017. When served with the aforesaid motion, the defendants filed the replying affidavit of Gitu wa Kahengeri to oppose the same. When the motion came up for interpartes hearing, learned counsels appearing in this matter were invited to make oral submissions.

2) I have considered the grounds stated on the face of the motion and the facts deponed in the filed affidavits in support and against the application. I have further considered the oral submission made by learned counsels from both sides.

3) It is the submission of M/s Benbella learned advocate for the plaintiffs that the failure to prosecute this suit on 17. 10. 2017 was occasioned by Mr. Eric Mutua, learned counsel who was seised with the matter on behalf of the plaintiffs. It is said that he had travelled out of the country to attend a fact finding mission in Tanzania which was composed of representatives from Pan African Lawyer Union (PALU) where Mr. Mutua is the vice-president, the International Bar Association, The American Bar Association and Southern African Development Community Lawyers. It is pointed out that the mission was in relation with the shooting of the president of Tanganyika Lawyers Association.

4) The plaintiff further pointed out that the suit was not in any case ready for hearing because parties had not filed the agreed issues as required under Order 11 of the Civil Procedure Rules. The learned advocate further pointed out that the plaintiffs have always taken active steps to prosecute the suit.

5) Mr. Muriithi, learned advocate for the defendant strenuously opposed the motion. In the replying affidavit of Gitu wa Kahengeri, the 1st defendant herein narrated how the plaintiffs have frustrated the hearing of this case. It is the submission of Mr. Muriithi that the plaintiffs have failed to provide plausible reasons to enable this court exercise its discretion in favour of the plaintiffs. It was pointed out that when the matter came up for hearing the witnesses did not turn up and no explanation has been given to explain their absence. The defendants have further argued that the argument that the suit is not ready for hearing because the agreed issues have not been filed is a red herring because the defendants have complied with the provisions of Order 11 of the Civil Procedure Rues. The defendants also argued that if the plaintiffs knew that the suit is not ready for hearing then they should not have invited the defendants to attend the registry for fixing a hearing date. In fact the plaintiffs went ahead and fixed a hearing date and thereafter served the defendants with a hearing notice. The defendants urged this court to find that the delay was deliberate and was intended to obstruct the course of justice.

6) I have considered the material placed before this court and the rival submissions of learned counsels. It is not in dispute that this suit was fixed for hearing by the plaintiffs on 17. 10. 2017. It is also not in dispute that when the suit was called out for hearing, M/s Benbella who held brief for Mr. E. K. Mutua, learned advocate for the plaintiffs applied for an adjournment on the basis that Mr. Mutua had travelled out of the country and that since he was seised with the matter then the suit could not proceed for hearing. It is also not in dispute that M/s Patricia Benbella is an associate in the firm of E. K. Mutua & Co. Advocates. None responded meaning the plaintiffs either neglected to attend court or they were advised to avoid attending court on that day. M/s Benbella surprised the court when she stated that she had no instructions to prosecute the suit. The learned advocate came to court with a predetermined opinion that the court would allow her application for adjournment hence she did not prepare for any disappointment by the court to refuse to adjourn the hearing of the suit like it happened in this case. It has been argued by the plaintiffs that this suit was not ready for hearing because the agreed issues had not been filed. With respect, I do not think that ground can stand. Parties to a suit are required where it is possible to file agreed issues, however parties are unable to agree on the issues the law is flexible in that any party may file their own separate issues. Where parties have completely failed to file the issues the court is bound by law to draw up the issues in dispute. It cannot therefore be said that this suit is not ready for hearing. The record clearly shows that the plaintiffs’ advocate had the suit fixed for hearing on 17. 10. 2017 after sending out a letter of invitation to the defendant’s advocate.

7) This suit was dismissed on the basis that the plaintiffs were absent from court hence there were no witnesses to present evidence in support of the plaintiffs’ suit. The plaintiffs and their counsel have failed to offer any explanation as to why they were absent from court. In fact, Ms Benbella was at pains to explain that. This court appreciated the fact that Mr. E. K. Mutua, learned advocate for the plaintiffs was engaged in a very important mission in Tanzania and the court could have indulged the plaintiffs by granting them an adjournment but the plaintiffs were not present in court to show that they were ready to testify had their advocate been present in court. The plaintiffs have so far failed to convince this court to exercise its discretion in their favour.

8) In the end, I find no merit in the motion dated 31. 10. 2017. the same is dismissed with costs to the defendants.

Dated, Signed and Delivered in open court this 7th day of December, 2017.

J. K. SERGON

JUDGE

In the presence of:

.............................for the plaintiff

.............................for the Respondent