[2022] KEHC 1979 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAKURU

CIVIL SUIT NO. 169 OF 2003

JAMES MAREGWA...............................................................................PLAINTIFF/APPLICANT

VERSUS

SAMUEL W. NDINDIRI..........................................................1ST DEFENDANT/RESPONDENT

NYAHURURU DISTRICT LAND REGISTRAR.................2ND DEFENDANT/RESPONDENT

RULING

1. The Notice of Motion by the applicant dated 12th October 2021 prays for the following orders;

a) THAT this Honourable court be pleased to issue an order to reinstate the suit for hearing and determination on merit.

b) THAT the costs of this application be provided for.

2. The application is supported by the grounds on the face thereof and the sworn affidavit of the applicant dated 12th October, 2021. He averred that he is the legal owner of L.R No. Nyandarua/Kirima/662 registered in the name of the 1st respondent. He further averred that he filed the instant suit against the respondents on 22nd October, 2003 seeking a declaration that he is the rightful owner of the suit land but the suit was dismissed for want of prosecution but he had no notice or knowledge of the said action. He averred that he still resides in the land parcel yet the title is still registered in the name of the 1st respondent.

3. He added that failure to prosecute his case was that he had challenges in effecting service upon the 1st respondent due to his status and position until he was granted to serve him via way of substituted service. That he is old and sickly and suffers from memory lapse and therefore he was unable to trace his advocate’s office until the intervention of his children and the Law Society of Kenya and that was when he was informed that his suit was dismissed.

3. He finally averred that he is aware that time has passed and that the suit was dismissed under circumstances beyond his control and urged the court that his suit be reinstated and he be allowed to prosecute the same.

4. The respondents did not file any replying affidavit in opposition to the application but during hearing the 1st defendant/respondent’s advocate indicated that the 1st defendant/respondent passed on in 2008 hence the suit abated.

ANALYSIS AND DETERMINATION

5. The court has perused carefully the plaintiff/applicant’s application, the supporting affidavit and I find that there is only one issue for determination namely whether this court should reinstate the dismissed suit.

6. It is the plaintiff/applicant’s argument that his actions to effect proper service upon the 1st defendant/respondent was frustrated due to his powerful figure in a difficult regime and that he had also lost contact with his advocate due to his sickness that led to the dismissal of the suit by this court.

7. Upon perusal of the court file I note that the 1st defendant/respondent entered appearance on 12th October, 2004 and filed his defence dated 26th October, 2004. The plaintiff/applicant even filed grounds of opposition dated 24th February, 2005 against the 1st defendant/respondent’s application dated 30thDecember, 2004. The plaintiff/applicant further averred in paragraph 8 of his supporting affidavit to this application that he was able to effect service of summons upon the 1st defendant/respondent after he obtained orders for substituted service.

8. From the above, it is quite clear that the 1st defendant/respondent was indeed served and the matter even proceeded for some time before the suit was dismissed for want of prosecution. The suit was last in court on 22nd March, 2007 when the 1st defendant/respondent application came up after which the suit was later dismissed under Order 16 Rule 6 of the Civil Procedure Rules on 26th May, 2009.

9. In the instant case, having established the above this court in dealing with the issue for determination it should then look into the cause and time of delay in prosecuting the suit by the applicant.

10 In the case of Utalii Transport Company Limited & 3 Others Vs NIC Bank & Another, [2014] eKLR the court stated and correctly so, that:

“When the applicant states and correctly so, that:

“It is the primary duty of the plaintiffs to take steps to progress their case since they are the ones who dragged the defendant to court.”

Then exhorts that:

“Over one year has lapsed without the plaintiffs taking any step to progress their case.”

And makes a strong conclusion that:

“The plaintiff’s inertia runs contra to the overriding objective of the court stipulated in section 1A, 1B, 3A of the CPA.”

The first intuitive feeling one gets is that the offending proceeding should quickly be removed out of the way of the innocent party, but the law prohibits a court of law from such impulsive inclination, and requires it to make further enquiries into the matter under the guide of defined legal principles on the subject of dismissal of cases for want of prosecution a view which is undergirded by the fact that dismissal of a suit without hearing the merits is a draconian act which drives the plaintiff from the judgment seat. It is, therefore, a matter of discretion by the court.”

11. A leading case in relation to dismissal of suits is the often quoted case of Ivita Vs. Kyumbu (1984) KLR 441 where Chesoni J as he then was stated;

“The test is whether the delay is prolonged and inexcusable, and if it is, can justice be done despite such delay. Justice is justice to both the plaintiff and the defendant, so both parties to the suit must be considered and the position of the judge too, because it is no easy task for the documents and, or witnesses may be wanting and evidence is weak due to the disappearance of human memory resulting from lapse of time. The defendant must however, satisfy the court that he will be prejudiced by the delay or even that the plaintiff will be prejudiced. He must show that justice will not be done in the case due to the prolonged delay on the part of the plaintiff before the court will exercise its discretion in his favour and dismiss the action for want of prosecution. Thus, even if the delay is prolonged, if the court is satisfied with the plaintiff’s excuse for the delay, the action will not be dismissed but it will be ordered that it be set down for hearing at the earliest available time”.

12. In view of the above, it is clear that where an applicant commits acts of inordinate delay, the same occasions injustice to the respondent. The matter was filed in the year 2003, the appellant had done little to prosecute the same. From the authority cited aboveUtalii Transport Company Limited & 3 Others (Supra),it is clear that dismissal of a case is a draconian judicial act and should be done sparingly and employed only in cases where dismissal is the feasible and just thing to do.

13. Further, courts should strive to sustain rather than dismiss suits especially where justice would still be done and a fair trial allowed to take place despite the delay. In the circumstances of this case, the plaintiff/applicant in his supporting affidavit failed to attach any documentary evidence to support his excuse in delay to prosecute his case. In addition to that, he claims that he was sick and had partial memory lapse hence he was unable to trace his advocate’s office and that his advocate also failed to trace him.

14. This court is inclined to disagree with this excuse as it does not amount to sufficient reasons for the delay by the Plaintiff/Applicant in prosecuting the case. Further, the delay by the Plaintiff/Applicant in my opinion is unreasonable as no sufficient evidence has been adduced by him to justify the same or the efforts he has put in the attempt to prosecute his case. At any rate there was no supporting medical evidence to buttress his sickly assertion.

15. What amounts to inordinate delay was discussed by the court in the case of Mwangi S. Kimenyi Vs. Attorney General & Another (2014) eKLR where it was held thus;

“There is no precise measure of what amounts to inordinate delay. Inordinate delay will differ from case to case depending on the circumstances of each case; the subject matter of the case; the nature of the case, the explanation given for the delay; and so on and so forth” nevertheless, inordinate delay should not be difficult to ascertain once it occurs, the litmus test being that it should be an amount of delay which leads the court to an inescapable conclusion that it is inordinate and therefore, inexcusable....”

16. The right of a fair hearing is enshrined under Article 50 of the Constitution 2010. Further, in Richard Ncharpi Leiyagu v Independent Electoral Boundaries Commission & 2 others [2013] eKLRthe Court of Appeal

stated that:

“The right to a hearing has always been a well-protected right in our constitution and is also the cornerstone of the rule of law. This is why even if the courts have inherent jurisdiction to dismiss suits, this should be done in circumstances that protect the integrity of the court process from abuse that would amount to injustice and at the end of the day there should be proportionality.”

17. Consequently, applying the discretion of this court the application herein is dismissed with no orders as to costs.

DATED SIGNED AND DELIVERED AT NAKURU THIS 3RD DAY OF MARCH 2022.

H K CHEMITEI.

JUDGE