[2022] KEHC 2349 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL DIVISION

CIVIL SUIT NO. 72 OF 2004

JAMES MUCHENE NGEI..............PLAINTIFF/RESPONDENT

VERSUS

HON. ATTORNEY GENERAL......................1ST DEFENDANT

JOHN KARIUKI.............................................2ND DEFENDANT

JOHN NTURERE MWITI.............................3RD DEFENDANT

JASPER RECHE NYAGA.............................4TH DEFENDANT

ALEXANDER JAMES NDEGWA................5TH DEFENDANT

GALADYS WAIRIMU NDEGWA................6TH DEFENDANT

SAFARICOM LIMITED.......7TH DEFENDANT/APPLICANT

RULING

1. The motion dated 5th May, 2021 by Safaricom Limited(the 7th Defendant herein, (hereafter the Applicant) seeks that the suit by James Muchene Ngei (hereafter the Respondent) be dismissed for want of prosecution. The motion is expressed to be brought under Order 17 Rule 2(3) and Order 51 of the Civil Procedure Rules, among others. The grounds on the face of the motion are amplified in the supporting affidavit sworn byAnthony Leshan, counsel on record for the Applicant, who states that he is familiar with the matter, and duly authorized to swear the affidavit.

2. Counsel deposes that the suit herein was filed in 2004 amending it after 3 years and after pleadings closed over ten years since inception of the suit, , the Respondent’s testimony was partially taken on 13th May, and 24th July 2014 before Waweru J; that suit was slated for further hearing for purposes of cross-examination of the Respondent on 21st October 2014, however on the said date the trial Judge indicated to parties that he was on transfer and thus ordered that proceedings be typed on priority basis and the matter be mentioned on 13th November, 2014 for further directions.

3. He proceeds to state that for three 3years since the said directions were issued, the Respondent took no steps to progress the matter until 30th November, 2017 when the deponent received a mention notice indicating that the matter was slated for mention on 6th March, 2018. Further, on the said date, the court took notice that no steps had been taken to progress the matter and directed the Deputy Registrar facilitate the typing of proceedings; and during a mention on 24th October 2018, the Court confirmed that the proceedings had been typed and that a subsequent hearing date set for 15th May 2019 before Kamau J who adjourned the matter and directed the parties to follow up with the registry for the typed copies of proceedings to be certified.

4. That the learned Judge was to mention it again on 11th June and 31st July 2019 as her directions were not complied with. On the latter date the court reiterated its earlier directions and directed the Respondent to comply and set down the matter for hearing; that as of 3rd March, 2020 when the matter came up for notice to show cause why the suit should not be dismissed for want of prosecution, the Respondent had still not taken any steps to follow up on typed proceedings to progress the case despite several directions to that effect ; that the last step taken by the Respondent to progress the matter was on 31st July, 2019 which was a mention.

5. Counsel asserts that the delay in prosecuting the Respondent’s suit is inordinate, unreasonable, and inexcusable and prejudices the Applicant due to fading of witnesses’ memory concerning material facts compounded by their possible unavailability to testify. Thus, the Applicant’s capacity to effectively defend the suit is compromised while the Applicant continues to incur legal costs for representation since 2004. He urges that in the circumstances it is just and proper that the suit against the Applicant be dismissed for want of prosecution.

6. The 2nd Defendant’s counsel intimated that he was not opposing the motion, while the 3rd to 6th Defendants though served with the motion did not file responses. On his part, the Respondent opposed the motion through a replying affidavit. To the effect that the suit is partly heard and the trial Judge who has since been transferred had directed that the trial proceedings be typed; that when the matter was last in court on 31st July, 2019 proceedings had yet to be proof read; that he made a follow up until December of the same year but in 2020 access to the court registry was limited and filing of physical documents was disallowed. He asserts that he has been vigilant and eager to prosecute the suit and that the court had issued notices of dismissal while proceedings were still being typed. In conclusion he stated that the motion ought to be dismissed and the Respondent be allowed to fix the matter for hearing on priority basis.

7. The motion was canvassed by way of written submissions which were on record by 15th November 2021 on which date the court reserved ruling for 10th February 2022. It appears that seven days later, on 22nd November 2021 the Respondent filed a motion dated 19th November 2021 seeking leave to file a supplementary affidavit out of time. The motion, coming so late in the day was fixed for directions on the ruling date.

8. The Applicant’s submissions reiterated the history of the matter as set out in the grounds and affidavit in support of the motion. Citing the case ofNilesh Premchand Mulji Shah & Another T/A Ketan Emporium v M.D Popat & Others & Another (2016)eKLR , Article 159(2)(b) of the Constitution, Section 1A, 1B, 3A and 63(e) of the Civil Procedure Act and Order 17 Rule 2(3) of the Civil Procedure Rules, counsel asserted that it is in the public interest that parties progress their suits in an expeditious manner hence the power donated to the Court to dismiss a case for want of prosecution.

9. He relied on NaftaliOnyango v National Bank of Kenya [2005] eKLRas to the applicable principles in the court’s exercise of that power, and asserted that the Respondent’s suit has been in court for 17 years, during the last two of which the Respondent had taken no meaningful steps to progress the matter; that no credible explanation had been made out for the delay and; that the Applicant’s ability to defend the suit is bound to be compromised as the cause of action accrued 17 years ago and some parties in the suit such as the 4th Defendant are since deceased, compounding the situation. The court was thus urged to allow the motion.

10. Counsel for the Respondent, equally recalling the history of the suit, submitted that the motion is premature, misconceived, and bad in law as an order of dismissal for want of prosecution cannot issue where the cause of delay is excusable. Quoting Halsbury’s Law of England Vol. 37paragraph 448 and the locus classicus, namely, Ivita v Kyumbu(1984) KLR 441, in addition to Mwangi S. Kimenyi v Attorney General & Another [2014] eKLR and Moses Otsyula v Children of God Relief Institute [2015] eKLR, counsel submitted that dismissal for want of prosecution is matter of the court’s discretion requiring careful inquiry as to the period of delay, the explanation offered by the plaintiff , the likelihood of prejudice upon the defendant and the interest of justice.

11. He contended that the delay herein cannot be attributed to the Respondent as it was due to delayed proceedings and that no prejudice would be suffered by the Applicant if the motion is dismissed; that on the contrary, it is Respondent who would stand prejudiced by a dismissal order effectively denying him the right to be heard and resulting in a miscarriage of justice. Counsel reiterated the exhortation in NaftaliOpondo Onyango v National Bank of Kenya Ltdthat courts should be slow to dismiss suits for want of prosecution where the suit can proceed without further delay and without prejudice to the defendant. In conclusion, urging the court to dismiss the motion, counsel contended that the Respondent has always been keen to prosecute the matter and given the opportunity will progress the suit expeditiously.

12. The court has considered the material canvassed in respect of the 7th Defendant’s motion. As rightly submitted by the Applicant, Order 17 Rule 2 (3) of the Civil Procedure Rules (CPR) echoes the constitutional injunction in Article 159(2) (b) of the Constitution and the overriding objective in Section 1 A and 1B of the Civil Procedure Act for the expeditious dispensation of justice. Order 17 Rule 2 of the CPR provides inter alia that:

“(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.

(2) If cause is shown to the satisfaction of the court it may make such orders as it thinks fit to obtain expeditious hearing of the suit.

(3) Any party to the suit may apply for its dismissal as provided in sub-rule 1.

(4)….. “

14. The locus classicus on the above Rule is the case of Ivita v Kyumbu (1984) KLR 441 which has been followed in a long line of authorities, including those cited by the parties herein.The Court of Appeal restated the principles enunciated therein in the case ofRajesh Rughani v Fifty Investments Limited & Another (2016) eKLRby stating that:

“The test for dismissal of a suit for want of prosecution is stated in the case of Ivita -v- Kyumbu (1984) KLR 441). The test was expressed as follows:

The test is whether the delay is prolonged and inexcusable and if it is, whether justice can be done despite such delay. Justice is 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 missing and evidence is weak due to the disappearance of human memory resulting from lapse of time; the defendant must 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.”

See alsoArgan Wekesa Okumu v Dima College & 2 Others (2015) eKLR.

14. The history of this matter is well documented on the record. The Court has perused the said record. It bears some reproduction and scrutiny to place the motion herein in context. The Plaintiff’s suit filed in 2004 and relating to a cause of action allegedly arising in 2003, did not get off to hearing until 2014 when it was heard in part before Waweru J.The learned Judge upon being transferred soon after ordered in October 2014 for the typing of proceedings to facilitate further hearing before a different Judge. And whereas the Respondent cannot be blamed for the non-conclusion of the trial in that year arising from the trial Judge’s transfer, there is no evidence that the Respondent thereafter made efforts to pursue the typed proceedings. After a hiatus of 3 years since the order of Waweru J to have proceedings typed, the Respondent’s first correspondence to the court is dated 17th November 2017 and merely sought a mention date. Pursuant to the letter, the matter was listed before Mbogholi J (as he then was) on 6th March 2018.

15. On that date, the Judge noting that the case was an old one, and the parties had “not made any effort to move it forward” directed the Deputy Registrar to facilitate the expeditious typing of proceedings. Thereafter, the matter was once more mentioned on 24th October 2018 before the same Judge who confirmed that proceedings had been typed and directed that hearing date be taken on priority basis. Thus, on 7th November 2018 the matter was set down for hearing on 15th May 2019 before Kamau Jwho adjourned on the basis that proceedings on record had not been certified and she had another matter scheduled for 1130am on the same date.

16. There followed three mentions before the Judge, resting with the one on 31st July 2019. Once more, there is no evidence that during this period, the Respondent made any effort to follow up on the procurement of certified copies of proceedings, and indeed the Court was minded on the said last mention date to direct him to follow up. No steps were taken and eventually the Court on its own motion issued notices to the parties to attend a mention on 13th December 2019.

17. The notices dated 27th November 2019 although endorsed as duly served on the parties elicited no attendance on the said date. A further mention was fixed for 19th December 2019, and still no party attended, although there is no evidence that notices had been issued and served as earlier directed by Njuguna J. On 19th December 2019, the Judge set down the matter for mention on 6th February 2020. Once more notices were served on the parties as evidenced by stamp impressions on the filed notices acknowledging service. Come the 6th February 2020, no party attended and hitherto, no step had been taken by the Respondent himself.

18. The Judge, seemingly exasperated by the turn of events ordered that a Notice To Show Cause why the suit should not be dismissed (NTSC) issues for 3rd March 2020, on which date only the Applicant attended, and the Court noting that the Respondent had not been served, stood over the NTSC to 31st March 2020. The matter was not listed on that date, and lay dormant until 26th May 2021 when the Plaintiff’s advocate, no doubt prompted by the service of the 7th Defendant’s instant motion on 10th May 2021, per the affidavit of service by Robinson Muhando Khalialidated18th May 2021, wrote to the registry to seek a mention date.

19. Thus, it is clear beyond peradventure that the last step taken by the Respondent to progress his case before the above letter was the fixing of a hearing date on 7th November 2018 and the subsequent attendance before Kamau J between 15th May and 31st July 2019, a hiatus of about 5 years since the order of Waweru J. For about two years since the last attendance before Kamau J on 31st July 2019, the Plaintiff had taken no step whatsoever in the matter and failed to attend Court notices for mention of his case. It is apparent that his letter of 26th May 2021 was provoked by the instant dismissal motion.

20. He has tendered no evidence in support of paragraph 6 of his replying affidavit and none can be gleaned from the record regarding alleged follow up of his case. And while it is true that access to the registry was limited in 2020 due to the onset of the COVID-19 pandemic, the Court adopted the electronic filing system early, enabling parties to correspond with and file process electronically. Besides, there is no evidence that in 2019 or 2021 and to date, the Respondent has followed up on the certified proceedings. Cases belong to parties who bring them to court, and in this instance, it is not available to the Respondent to blame the Court for his failure to take steps to progress his case to completion.

21. The case herein is over 17 years old and has been partly heard for a period of over six years. By all accounts, this delay is inordinate, and I agree with the Applicant that the Respondent’s explanation appears as flippant as it is unacceptable. Considering this lengthy period of delay, it is foreseeable that the availability of witnesses or their memory of pertinent events may not be guaranteed if the hearing ultimately resumes. Can justice still be done between the parties in the circumstances? In the circumstances of the case, it appears that a fair trial may not be possible and that indeed the Defendants would be most prejudiced if the matter were to proceed to further hearing, which in any event does not appear feasible in the near future as the Respondent has neither procured certified proceedings as ordered on 31st May 2019 nor otherwise demonstrated his alleged readiness and willingness to prosecute his case.

22. The Court and parties are obligated to further the overriding objective aimed at the facilitation of the just, expeditious, proportionate, and affordable resolution of disputes. To sustain a cause that has remained outstanding, without good cause for over 17 years appears to me to fly in the face of the said objective. At a time when courts are deluged with heavy caseloads, they cannot afford to indulge parties who appear to litigate at leisure, displaying scant regard for the Court’s limited resources and the dictates of the Constitution and the law.

23. In the circumstances, the Court hereby allows the motion dated 5th May 2021 but will make an order to dismiss the Respondent’s suit against all the Defendants, with costs awarded to all of them, save the 3rd and 4th Defendants. Only the Applicant (7th Defendant) is awarded the costs of the motion.

DELIVERED AND SIGNED ELECTRONICALLY AT NAIROBI ON THIS 10TH DAY OF FEBRUARY 2022.

C. MEOLI

JUDGE

In the presence of:

Applicant - absent

Plaintiff- absent

1st Defendant - absent

Mr Museve h/b for Ms Guserwa for the 2nd Defendant

3rd to 6th Defendants absent

C/A: Carol