[2016] KEHC 3013 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL CASE NUMBER 400 OF 2010

HILLOWLY IBRAHIM NOOR. ……………………………. 1ST PLAINTIFF

DARASA INVESTMENTS LIMITED. ……………………… 2ND PLAINTIFF

VERSUS

JOSEPH MEMBA SYUMA. ……………………….……… 1ST DEFENDANT

ELIJA MULELA. …………………....……….……….……. 2ND DEFENDANT

JOEL KIJIRU. ………………………...….………….….…. 3RD DEFENDANT

THOMAS MWANGANGI. ……………..………………...… 4TH DEFENDANT

THOMAS MUTUSE……………………..…………...…….. 5TH DEFENDANT

ISAAC BETT.………………………....………..……….….. 6TH DEFENDANT

NATION MEDIA GROUP. ……………………....……….…. 7TH DEFENDANT

R U L I N G

The 7th Defendant/Applicant herein has moved this honourable court by way of a notice of Motion dated 11th September, 2015, under Order 5 Rule 1(b), Order 17 Rule 2(3), Order 51 Rule 1 of the Civil Procedure Rules 2010, Sections 1A, 1B and 3A of the Civil Procedure Act Cap 21 Laws of Kenya and all other enabling provisions of the law seeking for the following Order: -

1. That the Plaintiff’s suit against the 7th Defendant be dismissed for want of prosecution.

2. That the costs of the application and the suit herein be awarded to the 7th Defendant.

The application is premised on the grounds that: -

1. The Plaintiff’s advocate has never and/or failed to take any action in this matter since the 10th day of July, 2013.

2. The Plaintiff has lost interest in prosecuting the suit.

3. It would be in the interest of justice to allow the application.

It is supported by the Affidavit of Zehrabanu Janmohamed sworn on the 11th September, 2015, wherein she depones that since the suit was filed on 19th day of August, 2013 nothing much has been done by the Plaintiff to prosecute the same.

The last action in the matter was taken on 25th July, 2013 when the matter was in court for pre-trial directions but the court was informed that the Defendants were yet to be served with the Plaintiff’s witness statements and hence the matter was adjourned.

That since then, the Plaintiff has not taken any other action. It is averred that the continuance of the suit is prejudicial to the 7th Defendant being a limited liability company in that there is a high turnover of employees and it will be difficult to get the witnesses when the matter finally comes up for hearing.

The application is not opposed. Though the Plaintiffs were served with the hearing notice for the application by way of registered post they did not file a replying affidavit or grounds of opposition as required by the law and therefore the application proceeded ex parte.

The court has considered the application before it together with the grounds on which it is premised and the supporting affidavit. It is more than three (3) years since the last action in this matter was taken by the Plaintiffs.

The application has been brought under Order 17 Rule 2(3) which provides: -

“Any party to the suit may apply for its dismissal as provided for in sub rule 1.

While Order 17 Rule 2(1) provides

“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.”

The principles to be applied in a case such as the one before the court, are set out in the case of Allen Vs Sir Alfred MC Alpine & Sons Limited (1968) where Salmon L. J. stated as follows: -

“(i) There has to be inordinate delay. It is not possible to lay down a tariff so many years or more on one side of the line and a lesser period on the other. What is or is not inordinate delay must depend on the facts of each particular case. These vary from case to case but it should not be too difficult to recognize inordinate delay when it occurs.

(i) THAT this inordinate delay is inexcusable. As a rule, until a credible excuse is made out, the natural inference would be that it is inexcusable.

(ii) THAT the defendants are likely to be seriously prejudiced by the delay. This may be prejudice at the trial of issues between themselves and the Plaintiff, or between each other, or between themselves and third parties. In addition to any inference that may properly be drawn from the delay itself, prejudice can sometimes be directly proved. As a rule, the longer the delay, the greater likelihood of serious prejudice at the trial.”

The above principles have been followed in Kenya in the case of Inter Vs Kyumba (1984) KLR 441 where it was held inter alia: -

“The test applied by the courts in an application for dismissal of a suit for want of prosecution is whether the delay is prolonged and inexcusable, and if it is, whether justice can be done despite 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 but it will be ordered that it be set down for hearing at the earliest time. It is a matter in the discretion of the court.”

The power of the court to dismiss a suit for want of prosecution is discretionary power but which should be exercised judicially. This was the holding in the case of Moses Muriira Maingi & 2 Others Vs Mwangi Kamuru & another – Nyeri Civil Appeal No. 151 of 2010 and also in the case of ET Monks & Co. Limited Vs Evans (1985) KLR 584 wherein Kneller J, as he then was held inter alia: -

“Whether an application for dismissal of the suit for want of prosecutions should be allowed or not is a matter for the discretion of the Judge who must exercise it judicially. The court shall among other things consider whether the delay was lengthy. The court shall among other things, consider whether the delay was lengthy, whether it has rendered a fair trial impossible and whether it was inexcusable. However, each case will turn on its own facts and circumstances.”

The 7th Defendant has argued that the delay in prosecuting the suit is prejudicial to it being a limited liability company, there is a high turnover of employees and it will be difficult for it to trace the witnesses that it intends to call in this matter. In my view, this is a great prejudice on the part of the 7th Defendant in that it will not be possible for it to defend the case without witnesses.

In the premises aforegoing, I find that the application dated 11th September, 2015 has merits and the same is allowed with costs of the application and the main suit to the 7th Defendant.

Dated, signed and delivered at Nairobi this 15th day of September, 2016.

…………………………………..

L NJUGUNA

JUDGE

In the presence

…………………………. For the Plaintiffs

………………………….. for the Defendants