[2023] KETLABT 681 (KLR)

Gacheru v National Transport & Safety Authority (Appeal TLAB/E018 of 2022) [2023] KETLABT 681 (KLR) (28 August 2023) (Ruling)

Neutral citation: [2023] KETLABT 681 (KLR)

Republic of Kenya

In the Transport Licensing Appeals Board Tribunal

Appeal TLAB/E018 of 2022

A Kamotho, Chair, Joseph Mcdonald, James Ngomeli, Maryan Hajir & Waithira Muiruri, Members

August 28, 2023

Between

Antony Kariuki Gacheru

Appellant

and

National Transport & Safety Authority

Respondent

Ruling

Introduction 1. The Appellant is a male adult of Identification No: [particulars withheld], a resident of Naivasha town within Nakuru County.

2. The Respondent, National Transport and Safety Authority (NTSA), is a statutory body established under section 3 of the National Transport and Safety Authority Act No. 33 of 2012 and has the responsibility to: advise and make recommendations to the Cabinet Secretary on matters relating to road transport and safety, implement policies relating to road transport and safety; plan, manage and regulate the road transport system; ensure the provision of safe, reliable, and efficient road transport services and to administer the Traffic Act.

3. The Appellant filled a memorandum of Appeal claiming that the National Transport and Safety Authority, the Respondent, in their system shows they have issued him with his smart Driving License but he is yet to receive it.

4. Attached to the Memorandum of Appeal was a print out of his TIMS account. Upon issuance of the Notice of Hearing the Appellant failed to attend court and all attempt to get him to defend his case turned futile.

Issues for DeterminationThe Tribunal is forced to make a determination on whether or not the suit herein is liable for dismissal for want of prosecution within the framework of Order 17 Rule 2 of the Civil Procedure (Amendment) Rules 2020. a.Whether the Appellant’s case should be dismissed for want of prosecution

Analysis and Determination a)Whether the Appellant’s case should be dismissed for want of prosecution? 5. There are three key questions to be answered that is;i.Whether the Applicant has satisfied the statutory threshold set out under Order 17 Rule 2 of the Civil Procedure (Amendment) Rules 2020?ii.Whether there has been inordinate and inexcusable delay on part of the Plaintiff?iii.Whether it would cause grave injustice to the Defendants if this case were to be allowed to proceed to trial notwithstanding any preceding delay on part of the Plaintiff?

6. The legal framework on dismissal of a suit for want of prosecution is premised on Order 17, Rule 2 of the Civil Procedure (Amendment) Rules 2020 which states as follows;“(2)Notice to show cause why suit should not be dismissed;(1)In any suit in which no application has been made or step taken by either party for one year, the court may give notice in writing to the parties to show cause why the suit should not be dismissed, and if cause is not shown to its satisfaction, may dismiss the suit”

7. A court may in its own motion dismiss a suit for want of prosecution. This was well established in the case of George Gatere Kibata v George Kuria Mwaura & another [2017] eKLR, where the court stated;“My understanding of the framework contained in Order 17 Rule 2 is that a court may suo moto dismiss a suit for want of prosecution. Within the same framework, the court may dismiss a suit on the same ground on the application of either party to the suit.”

8. Besides the legal framework set out in Order 17 Rule 2, the guiding criteria to be applied in considering whether or not a suit should be dismissed for want of prosecution has been articulated and settled in a number of leading authorities, among them, the case of Ivita -v Kyumbu (1984) KLR 441 where it is summarized as follows:“The test is whether the delay is prolonged and inexcusable and, if it is, can justice be done despite such delay.”

9. In Mwangi S. Kimenyi v Attorney General and Another, Civil Suit Misc. No. 720 of 2009, the court restated the test as follows: -“1. When the delay is prolonged and inexcusable, such that it would cause grave injustice to the one side or the other or to both, the court may in its discretion dismiss the action straight away. However, it should be understood that prolonged delay alone should not prevent the court from doing justice to all the parties- the plaintiff, the defendant and any other third or interested party in the suit; lest justice should be placed too far away from the parties.2. Invariably, what should matter to the court is to serve substantive justice through judicious exercise of discretion which is to be guided by the following issues;1)whether the delay has been intentional and contumelious;2)whether the delay or the conduct of the Plaintiff amounts to an abuse of the court;3)whether the delay is inordinate and inexcusable;4)whether the delay is one that gives rise to a substantial risk to fair trial in that it is not possible to have a fair trial of issues in action or causes or likely to cause serious prejudice to the Defendant; and5)what prejudice will the dismissal cause to the Plaintiff. By this test, the court is not assisting the indolent, but rather it is serving the interest of justice, substantive justice on behalf of all the parties.”

10. From the above legal principles, it is our considered view that the legal ramifications of the statutory threshold are that; a suit qualifies to be dismissed for want of prosecution if no application has been made or no step has been taken in the suit by either party for at least one year preceding the presentation of the application and or the court’s own motion seeking dismissal of the suit.

11. The background of this case is that, it was brought before this tribunal through a Memorandum of Appeal dated 19th May 2022. The matter came up for hearing on 9th November 2022 but the appellant was not in court. On 10th February 2023 the court through the secretariat issued the appellant with a Notice to show cause why the case should not be dismissed. The Appellant in this case never responded to the same. Further efforts by the tribunal through the secretariat to reach the appellant have proved to be futile.

12. The case has satisfied the principles set out for dismissal for want of prosecution. Firstly, the case has been before this tribunal for more than one year and the appellant has taken no step to prosecute his case even after being given reminders and finally being issued with a Notice to show cause.

13. Order 17, Rule 2 [Sub-rule 4] states that“The court may dismiss the suit for non-compliance with any direction given under this Order.”The Court issued the Appellant a Notice to show cause why the case should not be dismissed and to date no action has been taken to prove that he still desires to proceed with the suit.

14. The delay of one year in prosecuting a matter is inordinate and unreasonable. The Appellant has not explained it. The mere fact that the defendant has not demonstrated prejudice is not sufficient to sustain a suit that the Appellant has shown no interest in prosecuting for the last one year.

15. We are not persuaded that the Appellant has any interest in prosecution of the suit. It is in the interest of justice and fairness that the court invokes the overriding objective and exercise its discretion to bring the proceedings to an end.

OrdersHaving considered the facts and the law applicable to this case, the Transport Licensing Appeals Board hereby makes the following ORDERS:1. That the case be dismissed for want of prosecution.2. That each party should bear its own cost.It is so ordered.

DELIVERED AT NAIVASHA BY THE TRANSPORT LICENSING APPEALS BOARD ON THIS, 28TH DAY OF AUGUST 2023. DR. ADRIAN KAMOTHOCHAIRPERSON........................................................JOSEPH MCDONALDMEMBER........................................................MARYAN HAJIRMEMBER........................................................JAMES NGOMELIMEMBER........................................................WAITHIRA MUIRURIMEMBER........................................................