[2017] KEHC 3156 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

CIVIL CASE NO. 94 OF 2008

JARED NYAKAMBI SAGERO....................................PLAINTIFF/APPLICANT

VERSUS

SIMBA TRUCKS TRANSPORTERS LIMITED....DEFENDANT/DEFENDANT

RULING OF THE COURT

1. This is an Application dated 22/07/2016 filed by the Plaintiff/Applicant seeking the setting aside of this Court’s Orders issued on 17/07/2015 dismissing the Plaintiff’s suit for want of prosecution. The Application is supported by the Affidavit of Onyancha BW’Omote dated 1/08/2016 and a further affidavit dated 23/05/2017. The gist of the Application is that the Applicant could not secure hearing dates due to the congested court diary and that they were not made aware of the date for dismissal of suit on 17/07/2015. The Applicant now seeks the Court’s discretion to reinstate the suit in order to do substantial justice pursuant to the Constitution without undue regard to technicalities. The Applicant further avers that no prejudice shall be caused to the Defendant if the suit is reinstated.

2. The Application is strenuously opposed by the Defendant/Respondent whose Counsel Phillip M. Mulwa swore a replying affidavit dated 8/5/2017 in which he averred that there had been no interest on the part of the Plaintiff to prosecute the suit despite the matter being fixed for hearing on several occasions. The Counsel further averred that the suit was dismissed after notice to show cause had been served but Plaintiff failed to turn up and therefore the Application should be dismissed with costs to the Defendant/ Respondent.

3. Parties agreed to canvass the Application by way of written submissions. I have carefully considered the said submissions and the authority cited. The issue for determination is whether the Plaintiff has convinced this court to set aside the orders dismissing suit for want of prosecution.

4. The suit herein had been dismissed under Order 17 Rule 2 of the Civil Procedure Rules for want of Prosecution. Indeed under the said provisions, where for a period of one (1) year no step is taken by either party to progress the suit the court may dismiss the suit if no cause is shown to the court’s satisfaction. The rationale behind the siad rule is a demand that the business of the court should be conducted expeditiously. It is without doubt Kenyan courts are faced with backlog of cases and the above rule is one of the ways to bring down part of the backlog of those cases. This suit was filed on the 14/10/2008 and at the time of dismissal for want of prosecution on 17/07/2015 it was seven (7) years old. It was the primary duty of the Plaintiff to take the requisite steps to progress his case. The court record is scanty as regards the Plaintiff’s aggressiveness at having the matter settled for hearing. The few dates the Plaintiff made a move are far off in between. The Plaintiff has claimed that the Court’s diary is congested but that does not seem quite convincing since there are no correspondences exchanged between his counsel over the need to secure early dates from the registry. There are only two hearing notices taken by the Plaintiff in 2012 and 2013. The notice of dismissal was forwarded to the addresses for both Advocates and it is only the Defendant’s Counsel who attended Court on 17/07/2015 when the suit was dismissed. The Plaintiff or his counsel has not given an explanation as to why there was no appearance in Court on the 17/07/2015 and further the Counsel for the Plaintiff has not shown that the dismissal notice either did not reach his offices or it was returned to sender. Again upon hearing of the dismissal one year later the present Application was filed on 1/08/2016 and deliberately left in the court file without giving it a date for hearing until 22/03/2017 when the Plaintiff’s Counsel’s representative turned up at the registry and fixed the Application for hearing. No good reason has been given by the Plaintiff for that delay. Hence it can be concluded that the conduct of the Plaintiff is one of indolence.

5. The Counsel for the Defendant has submitted that his client stands to suffer prejudice in that all its witness have since left employment and might not be traced. Again the Defendants counsel had been attending court all through while the Plaintiff gave it a wide berth and therefore the Application for reinstatement ought to be refused.

6. Taking into account the inordinate delay in prosecution the initial suit before dismissal and the present Application, I find the Plaintiff has not persuaded this court to exercise its discretion in his favour. The overriding objective of the court would not come to the aid of the Plaintiff. It is only just that the Defendant be freed from the inert grip of the Plaintiff. Even though the delay might have been caused by the Plaintiffs Counsel, I find there were serious lapses or negligence for which if the Plaintiff is well advised, has a clear remedy.

7. With the foregoing, the Plaintiffs Application’s dated 22/07/2016 lacks merit. The same is ordered dismissed with costs to the Respondent.

It is so ordered.

Dated, Signed and Delivered at MACHAKOS this 5THday of OCTOBER, 2017.

D. K. KEMEI

JUDGE

In the presence of:-

Muumbi for Mulwa for Respondent

No appearance for Applicant

C/A: Kituva