[2018] KEHC 8625 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT OF KENYA

AT EMBU

E.L.C. CASE NO. 95 OF 2014

JAMES MWANGI GATUNDU.........................PLAINTIFF

VERSUS

MASTERMIND TOBACCO (K) LTD............DEFENDANT

RULING

1. On 14th June 2016 the Defendant herein filed a notice of motion dated 13th June 2016 under Order 17 Rule 2 (1) (2) (3) of the Civil Procedure Rules and all enabling provisions of the law seeking dismissal of the Plaintiff’s suit for want of prosecution.

2. The said application was based upon the following four grounds;

a. The suit was certified ready for trial on 27th April 2015 notwithstanding the Plaintiff’s non compliance with Order 11 of the Civil Procedure Rules.

b. The Plaintiff has neither fixed the suit for hearing since 27th April 2015 nor taken any step whatsowever to ensure prosecution of this matter.

c. That delay period of over one (1) year warrants dismissal of the suit.

d. That it is in the interests of justice that litigation be brought to an end.

2. The application was supported by a brief affidavit sworn by the Defendant’s advocate on 13th June 2016 in which he reiterated the grounds set out in paragraph 2 hereof.

3. The Plaintiff’s advocate swore a replying affidavit dated 28th August 2017 in opposition to the said application. It was stated that the Defendant’s said application had delayed the fixing of a hearing date for the suit for over one year and that there was no ELC judge at Embu at the time of filing the said application. The Plaintiff’s counsel also opposed the said application on the basis that the Defendant was equally guilty of failing to fix the suit for hearing. It was the Plaintiff’s contention that he was ready and willing to prosecute his suit.

4. By consent of the parties, it was directed that the Defendant’s said application be disposed of through written submissions. The Defendant filed its submissions on 30th October 2017 whereas the Plaintiff filed his on 27th October 2017.

5. In his submissions, the Defendant’s counsel urged the court to dismiss the Plaintiff’s suit for want of prosecution. It was submitted that the Plaintiff had failed to comply with pretrial directions under Order 11 Civil Procedure Rules on several occasions and that he had never sent any invitation for fixing of a hearing date for the suit.

6. The Defendant’s counsel further submitted that there was undue delay in the prosecution of the suit and that such delay ran counter to the overriding objective of the Civil Procedure Act and Civil Procedure Rules of facilitating just, expeditious, proportionate and affordable resolution of disputes. It was also submitted that in exercising judicial authority under Article 159 (2) of the Constitution of Kenya the courts and tribunals were obliged to ensure that justice shall not be delayed. The Defendants relied on several authorities on the application of the overriding objective of the Civil Procedure Act and the Civil Procedure Rules.

7. In his written submissions, the Plaintiff’s counsel simply reiterated the contents of his replying affidavit. It was his submission that the Defendant had delayed the hearing of the suit by filing the instant application and failing to prosecute it; that there was difficulty in obtaining a hearing date in the absence of an ELC Judge; and that the Defendant was equally guilty of failing to fix the suit for hearing.

8. It was further submitted by the Plaintiff’s counsel that the Defendant shall not suffer any prejudice if the application is disallowed. He also relied upon the provisions of section 1A and 1B of the Civil Procedure Act and Article 259 of the Constitution of Kenya.

9. As was held in the case of Ivita V. Kyumbu [1984] KLR 441, the test to be applied in such cases is whether the delay is prolonged and inexcusable and, if, it is, whether justice could still be done in spite of delay. In the said case, Chesoni J (as he then was) cited with approval the following passage from the case of Fitzpatrick Vs Batger & Co Ltd [1972] ALL ER 657 in dismissing the Plaintiff’s suit for want of prosecution;

10. In the Fitzpatrick case, Lord Denning MR said at page 658;

…It is the duty of the Plaintiff’s adviser to get on with the case. Public policy demands that the business of the courts should be conducted with expedition. Just consider the times here. The accident was on December 13, 1916… It is impossible to have a fair trial after so long a time. The delay is far beyond anything, which we can excuse. This action has gone to sleep for nearly two years. It should now be dismissed for want of prosecution.

11. In the said case Chesoni J cited with approval a passage from the judgement of sir Charles Newbold P in the case of Mukisa Biscuit Manufacturing Co Ltd Vs West End Distributors Ltd [1969] EA 696 at P. 701as follows;

“The second matter relates to the undoubted delay in the hearing by the High Court of this case. It is the duty of the Plaintiff to bring his suit to early trial and he cannot absolve himself of his primary duty by saying that the Defendant consented to that position.”

12. The court has considered the Defendant’s application for dismissal of the suit, the Plaintiff’s response thereto and the respective submissions of the parties. The court has also considered the record of proceedings in this suit which was filed way back on 13th March 2006.

13. It cannot be denied that the Plaintiff has been less than diligent in the prosecution of the suit. He has been evidently been dilatory and indolent. The record shows that it has taken him several years to comply with Order 11 Civil Procedure Rules in order to progress the suit. According to the record, the suit was certified by the Deputy Registrar for hearing on 27th April 2015 after the Plaintiff failed to comply with pre-trial directions.The Plaintiff did not even bother to comply after the Defendant filed the instant application for dismissal of the suit for want of prosecution. The Plaintiff only filed his documents under Order 11 Civil Procedure Rules on 27th October 2017.

14. Whereas it is true that Embu Law Courts did not have a Judge for the Environment and Land Court between 2015 and 2016 that would not explain the prolonged delay in the prosecution of the suit. The court is aware that there was a visiting judge from time to time who handled Environment and Land Court matters at Embu. No effort was demonstrated by the Plaintiff in fixing this old case for hearing.

15. As indicated earlier, it cannot lie in the Plaintiff’s mouth to state that the Defendant was equally guilty of indolence in the prosecution of the suit. It was the Plaintiff who instituted the suit and it was his duty to prosecute it to its logical conclusion. He clearly failed in that duty.

16. The only aspect which remains for consideration is whether justice can be done to both parties in spite of the delay. The Defendant has submitted that the Plaintiff has not demonstrated what prejudice, if any, he will suffer if the suit is dismissed for want of prosecution. On the other hand, the Plaintiff has submitted that the Defendant would not suffer any prejudice if the suit is sustained.

17. In my view, it is for the Defendant in this case as the applicant to demonstrate that justice cannot be administered after such prolonged delay. It was the duty of the Defendant to demonstrate prejudice unless it could reasonably be inferred from the circumstances of the case. There is no material on record upon which such inference can be drawn.

18. In the circumstances of this case, the court is inclined to grant the Plaintiff another chance to prosecute his suit expeditiously to its logical conclusion. However, since the Plaintiff bears the blame for delay in prosecuting the suit, he shall bear the costs of the instant application assessed at ksh 15,000/-.

19. In the result, the court makes the following orders to dispose of the Defendant’s application;

The Defendant’s notice of motion dated 13th June 2016 is hereby disallowed.

The Plaintiff shall bear the costs of the said application in the sum of Kshs 15,000 to be paid within the next 30 days.

The Plaintiff shall prosecute the suit by fixing it for hearing within the next 60 days.

In default of compliance with orders (b) and (c) above, the suit shall stand dismissed for want of prosecution without further order.

It is so ordered.

RULING DATED, SIGNEDand DELIVERED in open court at EMBU this1st day ofFEBRUARY, 2018.

In the presence of Ms Beth Ndorongo holding brief for Mr Mbaluka for the Defendant and in the absence of the Plaintiff.

Court clerk Njue/Leadys

Y.M. ANGIMA

JUDGE

01. 02. 18