[2015] KEHC 1476 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL SUIT NO. 400 OF 2012

ETHICS AND ANTI CORRUPTION

COMMISSION ...................................... PLAINTIFF/RESPONDENT

VERSUS

ALPHONCE MUTINDA .........................DEFENDANT/APPLICANT

RULING

1. Alphonse Munene Mutinda, the defendant herein, took out the motion dated 23rd April 2015 in which he applied for the plaintiff’s suit to be dismissed for want of prosecution. The motion is supported by the affidavit of Kelvin Mogeni, learned advocate for the defendant. When served with the motion, Ethics and Anti-corruption Commission, the plaintiff herein, filed the replying affidavit of Charles Ayoo to resist the application. When the motion came up for interpartes hearing, learned advocates appearing in the matter recorded a consent order to have the motion disposed of by written submissions.

2. I have considered the grounds set out on the face of the motion and the facts deponed in the affidavits filed in support and against the application. I have also taken into account the rival submissions. It is the submission of the defendant that it has been more than 2 years since this suit was filed and no steps have been taken to prosecute the case hence the suit should be dismissed for want of prosecution pursuant to the provisions of Order 17 rule 2 (3) of the Civil Procedure rules. It is Mr. Mogeni’s averment that the plaintiff has lost interest in prosecuting its claim. On its part, the plaintiff beseeched this court not to dismiss the suit for want of prosecution since it is apparent that the suit is not ready for hearing due to the fact the defendant has not complied with pre-trial procedures under Order 11 of the Civil Procedure Rules. It was also pointed out by the plaintiff that it has complied with the pre-trial procedures and hence it has always been ready and willing to set down the suit for hearing.

3. The substantive suit is expressed in the plaint dated 9th August 2012 in which the plaintiff sued the defendant claiming for payment of kshs.25,900,000/= plus interest and costs as restitution to the City Council of Nairobi hereinafter referred to as the ‘council’. The particulars of the plaintiff’s claim is the outcome of an investigation into teh allegations that the City Council of Nairobi lost money in a fraudulent transaction wherein the council had paid kshs.283,200,000/= to purchase parcel no. L.R. no 1474/2 for use as a public cemetery. The plaintiff avers that its investigations revealed that on 19. 12. 2008 one Henry Musyoki Kilonzi had entered into a sale agreement with Naen Reach Ltd in which the later agreed to purchase L.R. no. 1475/2 from the former at kshs.110,000,000/=. On the same date, the plaintiff avers that the council purportedly entered into a sale agreement to purchase the same property from Henry Musyoki Kilonzi at a price of kshs.283,000,000/=. The aforesaid money is alleged to have been paid into a joint account in the names of a number of firms of advocates namely: Odero Osiemo & Co. Advocates, P. C. Onduso & Co Advocates and Alphonce Mutinda & Co. Advocates. The plaintiff alleged that its investigations revealed that the purchase price of kshs.283,000,000/= was highly exaggerated and that the parcel of land was not suitable for use as a cemetery. The plaintiff is of the view that the transaction was a fraudulent scheme on the part of some public officers and other persons including the defendant to unlawfully acquire public property hence the resulting contract is null and void. The plaintiff further avers that out of kshs.283,000,000/= paid by the council as purchase price, only a sum of kshs.110,000,000/= was paid to the registered owner of the aforesaid parcel and a substantial amount of the remainder was paid to several persons for no consideration at all. The plaintiff further avers that amongst the recipients of the aforesaid funds was the defendant who was paid kshs,25,900,000/= over and above his legal fees as the advocate acting for the purported vendor in the said fraudulent transaction.

4. When served with the plaint the defendant denied the plaintiff’s claim by filing a defence. The defendant averred that the transaction between the council and Henry Musyoki Kilonzi was lawful and binding in law. The defendant further stated that the property was sold on the basis of a willing seller willing buyer and that the price was not exaggerated at all and that the council found the parcel to be suitable for its intended purpose. It is also stated by the defendant that any money received by him from the proceeds were disbursed under instructions and it constituted part of the consideration of the sale and that the same was not public money.

5. Having set out in brief the case pending before this court, let me now revisit the defendant’s motion, the subject matter of this ruling. The defendant avers that pleadings closed fourteen days from the date the defence was filed on 20. 09. 2012. The defendant urged this court to find that the plaintiff went to sleep and has taken no step to prosecute nor list this suit for hearing for a period of over 2 years. The defendant denied the plaintiff’s assertion that he was the cause for the delay in fixing the suit for hearing. This court was also asked to find the delay to be inordinate and in excusable.

6. The principles to be considered in an application for dismissal for want of prosecution are well settled. First, an applicant must show that there was an ordinate delay in prosecuting the suit and secondly, that the delay is inordinate and inexcusable. In the matter before his court, the plaintiff admits that there was delay but it is of the view that the cause of the delay has been explained and that the delay is not inordinate nor inexcusable. It is not in dispute that close of pleadings took place in the first week of October 2012. It is also not in dispute that the suit has not been fixed for hearing from the date of close of pleadings which is a period of nearly 3 years as at the time of writing this ruling. A critical examination of the averments contained in the replying affidavit of Charles Ayoo will reveal that the plaintiff has given a detailed explanation of the reasons which prevented it from having the case listed for hearing. The Plaintiff has annexed two letters in which the defendant was invited to visit this court’s registry to fix convenient hearing date. This clearly shows that the plaintiff has not lost interest in pursuing the suit. There is also evidence of correspondence coming from the defendant to the plaintiff urging the plaintiff to confirm that the suit should remain in abeyance pending the hearing and determination of Anti-corruption case no. 19 of 2010. There was also an explanation that the court had no hearing dates since its diary had closed. The plaintiff’s conduct is not that exhibited by a party who has lost interest in prosecuting its suit. The other important point which drew the attention of this court is the averment that the defendant has failed to comply with the provisions of Order 11 of the Civil Procedure Rules. The defendant did not deem it fit to respond to this very serious submission. Attached to the replying affidavit of Charles Ayoo is the defendant’s advocate’s letter dated 15. 01. 2013 addressed to the plaintiff in which the defendant informed the plaintiff that he was not going to supply to the plaintiff the list of his witnesses and the witness statements plus the documents he was going to rely in his defence. Some of those documents are necessary to be exchanged in order for a pre-trail conference or directions to be undertaken under Order 11 of the Civil Procedure Rules. It has been the practice of this court for a while now that, a suit in which parties have not complied with the provisions of Order 11 will not be certified as ready for hearing. However, in a case like this, the plaintiff ought to draw the attention of the court of its predicament and the court will in most cases certify the suit to be ready for hearing thus opening the way to list the suit for hearing. I therefore find the plaintiff’s later explanation to be plausible.

7. What I get from submissions, is that, the plaintiff has not lost interest to prosecute its case but instead, though unsuccessfully, taken steps to list the case for hearing.

8. A delay for 3 years is certainly not countenanced but in the circumstances I have outlined, I find that good reasons have been given to justify the delay hence the delay is excusable. This suit is a public interest case which should actually be expeditiously heard and determined. Its continued pendency tends to put strain on the parties involved. In the end I decline to grant the orders sought by the defendant. I instead, dismiss the motion with costs abiding the outcome of the suit. In order to avoid the matter procrastinating further, I direct the parties to comply with the provisions of Order 11 of the Civil procedure Rules and appear before this court on 19. 11. 2015 for further orders and directions on the way forward.

Dated and delivered in open court this 23rd day of October, 2015.

J. K. SERGON

JUDGE

In the presence of:

………………………………………. for the Plaintiff

……………………………………….for the Defendant