[2014] KEHC 1754 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAKURU

CIVIL CASE NO. 223 OF 2008

JACINTA NJOKI WAKABA(suing as legal representative of

DANIEL WAKABA GACHOKA)....................................PLAINTIFF/RESPONDENT

VERSUS

ABERDARE FARMERS SACCO LTD…………..........................1ST DEFENDANT

JAMES M. GITAU T/A GALIANT AUCTIONEERS….…………2ND DEFENDANT

MILTON GITAU GICHURU .…..............................3RD DEFENDANT/ APPLICANT

JANE NJERI………………………........................4TH DEFENDANT/APPLICANT

RULING

1. This is the 3rd and 4th defendants Notice of Motion dated 9th February , 2011 seeking;

(i) That the suit be dismissed for want of prosecution

(ii) That costs of this suit and application be provided for.

2. The Application is expressed to be brought under Order 17 Rule 2 (1)(3) and Order 51 Rule 1 of the Civil Procedure Rules 2010.

3. The application is anchored on a supporting affidavit deponed by Milton Gitau Gichuru, the 3rd defendant herein with authority to swear the affidavit on behalf of the 4th defendant and on the grounds on the face of the application.

4. The 3rd and 4th Defendants set out their case as follows; that since this matter was last in court on 8th February, 2010 the plaintiff has not taken any step to have this matter listed for hearing or prosecuted in any manner; that the unreasonable delay in prosecution of this suit shows the plaintiff is not interested in the same; that it will only be fair if this suit is dismissed with costs to the 3rd and 4th defendants

5. The application is opposed. Jacinta Njoki Wakaba filed a replying affidavit dated 9th June, 2011 where she deposes that the application is misleading as she has always done her best to have the suit fixed for hearing as evidenced by (JNW1) ;that the matter could not be fixed for hearing for various reasons including unavailability of dates in court: that it is not true that the matter was last in court on 24th November, 2008 and that a period of three years had lapsed since the last time the matter was last in court; that the applicant had not served the plaintiff with their defence hence they had contributed to the delay; that she was interested in the suit as the subject matter was land where she resides with her children but was fraudulently sold by the defendants.

6. In a further affidavit deponed by the 3rd defendant on 20th June, 2011he depones that upon perusal of the court file, he had noted that this matter was last listed for hearing prior to filing this application on 17th June, 2009; that the applicant was indolent in prosecuting this matter and had only attempted to fix it for hearing after the current application was served upon the plaintiff; that the assertion that the respondent had not been served with the defence by the applicant does not exonerate the plaintiff from taking appropriate steps in prosecuting the suit.

7. There was no response by the 1st and 2nd respondents although they were served with the application on 22nd February, 2011 by a process server, Arasa Kinara and on 4th February, 2014through registered mail by George Gisore Mboga

8. I have perused the court record and heard oral submissions by counsel for the 3rd and 4th defendants. I take the following views on the matter.

9. This is an old application filed in 2011. Although the plaintiff filed a replying affidavit on 9th June, 2011 in which she has tried to persuade the court that she is still interested in prosecuting the suit, she has not taken any steps to either fix this matter for hearing or even comply with order 11 since she filed the suit or even after being served with this application. If the plaintiff was interested in prosecuting this suit, she would have demonstrated to court steps taken since 2011 to bring this suit to an end. Further, although her counsel was served with the hearing notice of the application on 25th March, 2014 by a process server George Rasugu and they acknowledged receipt, they did not attend court on the hearing date.

10. The decision whether or not to dismiss a suit is purely discretionary. However, like any other discretion the same must be based on reason and should neither be based on sympathy nor exercised capriciously .

In Sheikh Vrs Gupta and others Nairobi HCCC No. 916 of 1960 (1969) E.A Trevelyan, J stated as follows:

“………………in deciding whether or not to dismiss a suit under order 6, a court will be slow to make an order if it is satisfied that the hearing of the suit can proceed without further delay that the defendant will suffer no hardship or that there has been flagrant and culpable inactivity on the part of the plaintiff”

11. In this case, I find that there has been flagrant and culpable inactivity on the part of the plaintiff who has not demonstrated the steps she has taken to set down this matter for hearing as an indicator that she is still interested in pursuing her claim.

12. The upshot of the foregoing is that I find the Notice of Motion dated 9th February, 2011 merited and dismiss the plaintiff’s suit for want of prosecution with costs of the suit and application to the Defendants.

Dated, signed and delivered this 17th Day of October 2014

L N WAITHAKA

JUDGE

PRESENT

Ms Njoroge holding brief for Mr Mboga for the plaintiff

N/A for defendant

Emmanuel Maelo : Court Assistant

L N WAITHAKA

JUDGE