[2014] KEHC 8015 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

ENVIRONMENT AND LAND DIVISION

ELC. CASE NO. 79 OF 2012

JOHN KENNEDY MONYONCHO . …....……..…….…..1ST PLAINTIFF

RACHAEL MUGA MONYONCHO………..………..….. 2ND PLAINTIFF

VERSUS

CHARLES UKUMU MALUKI…...............................1ST DEFENDANT

KISAUNI PROPERTIES LIMITED…..……....…........2ND DEFENDANT

ZAVERCHAND RAMJI SHAH………….…....…….……3RD DEFENDANT

WHITEMEG INDUSTRIES LIMITED…..……......….…..4TH DEFENDANT

REGISTRAR OF TITLES……………..…..……...……….5TH DEFENDANT

RULING

Coming up before me for determination is the Notice of Motion dated 20th November 2013 in which the 1st, 3rd and 4th Defendants/Applicants seek for the following orders:

That this Honourable court be pleased to dismiss the Plaintiffs’ suit for want of prosecution.

Alternatively, this Honourable court be pleased to declare the interlocutory injunction granted on 27th July 2012 as lapsed in terms of Order 40 Rule 6 of the Civil Procedure Rules.

That the costs of this suit and this Application be awarded to the 1st 3rd and 4th Defendants.

The Application is premised on the grounds appearing on the face of it together with the Supporting Affidavit of the 1st Defendant, Charles Ukumu Maluki, sworn on 21st November 2013 in which he averred that this suit was filed by the Plaintiffs on 17th February 2012 together with a Notice of Motion seeking, inter alia, interlocutory orders of injunction. He further averred that the injunction application was heard inter-partes and a ruling delivered on 27th July 2012 in which an interim order of injunction was granted. He further stated that it is now almost 2 years since the filing of the suit and the Plaintiffs have not taken any action towards active prosecution of the suit including extracting or serving summons since filing suit. He then stated that he has been greatly prejudiced by the interlocutory orders as he cannot deal with his parcel of land freely. He further contended that the suit has abated as summons was not served within 30 days of institution of the suit.

The Application is contested. The Plaintiffs filed their Grounds of Opposition dated 17th February 2014 in which they stated that they were opposing the Application on the following grounds:

That the Application is misconceived and bad in law.

That the Application lacks merit and is therefore an abuse of the process of this Honourable court.

That the expiry of the validity of summons does not result into abatement of the suit.

That the Plaintiffs/Respondents have with reasonability sought to prosecute their suit.

That it is only fair and just that the Application be dismissed with costs.

The Plaintiffs further filed the Replying Affidavit of the 1st Plaintiff, John Kennedy Monyoncho, sworn on 17th February 2014 in which he averred that he filed a Notice of Motion on 18th October 2013 seeking an extension of the injunctive orders granted on 27th July 2012 and the extension of the validity of summons. He further stated that the 1st, 3rd and 4th Defendants filed their Notice of Appeal at the Court of Appeal on 9th August 2012. He further stated that the file went missing sometime in October 2012 and further that the Diary for the year 2012 was closed. He further averred that between January and February 2013, the court file could not be traced and that it was eventually found sometime in April 2013. He further stated that in the course of prosecuting the Application the summons were not obtained from the Registry and served on the Defendants. He further stated that the matter was again fixed for a mention on 24th July 2013 but it was not listed. He also stated that while in court on that date, they were directed to confirm that the summons had been served, defences filed and agreed issues also filed. He then further stated that the court file subsequently went missing again and was retrieved sometime in mid-October 2013 after which they filed their Notice of Motion Application dated 18th October 2013. He then indicated that a hearing date of 31st January 2014 was given for that application but the same was not listed in the Cause list on that date. He further indicated that the present Application was listed for hearing on 13th February 2014 and that on perusing the court file on 3rd December 2013 and again on 13th February 2014, they noted that the summons were never signed by the Registrar. He further stated that this administrative malfunction should not be visited upon the Plaintiffs as they pursue justice.

Both the Plaintiffs and the 1st, 3rd and 4th Defendants/Applicants filed their submissions. The Applicants submitted that this suit was filed by the Plaintiff on 17th February 2012 together with a Notice of Motion application seeking, inter alia, an interlocutory injunction which was granted on 27th July 2012. The Applicants further submitted that after obtaining the said interlocutory injunction, the Plaintiff went to sleep failing even to extract and serve summons to date. The Applicants further submitted that since July 2012 to July 2013, the Plaintiff did not take any action towards prosecution of the suit. On the failure to extract and serve summons, the Applicants relied on the decision of Waweru, J. in the case of Alfred Makhongo & Another versus Prof. Bishop Zablon Nthambiri & Another HCCC NO. 133 of 2005 where the court had this to say about failure to extract and serve summons:

“In my view, where no summons are signed or issued within 12 months of the filing of the suit, the suit is liable to be dismissed. This is because the court has jurisdiction only to extend the validity of summons that have already been signed and issued where such validity expires after 12 months of the date of issue if there is no service. Is there jurisdiction to sign and issue summons after 12 months from the date of filing suit? It appears to me that there is none. At any rate none is specifically provided for in the Rules.”

Relying on that authority, the Applicants submitted that there is absolutely nothing the court can do to resuscitate a suit whose summons have not been sighed and issued after 12 months of filing suit and that in this case, the summons have been unsigned and unissued for 24 months. It is on this basis that the Applicants seek for the court to dismiss this suit for want of prosecution.

On their part, the Plaintiffs submitted that they did their part by preparing and filing the summons which however remained unsigned and that this administrative malfunction should not be visited upon the Plaintiff as they pursue justice.

The main issue that emerges in this matter for determination is whether or not I should dismiss this suit for want of prosecution.

The applicable law is Order 17 Rule 2(1) which provides as follows:

“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.”

Order 17 Rule 2(3) provides as follows:

“Any party to the suit may apply for its dismissal as provided in sub-rule 1”

Upon perusal of this file and considering the response to this Application given by the Plaintiffs, I form the overall impression that the Plaintiffs have failed in prosecuting their case as they should and appear to have lost interest in the same. The Plaintiffs obtained an interlocutory injunction on 27th July 2012 after which they took no further action, particularly as regards extracting and serving the summons upon the Defendants. Due to the Plaintiff’s general lethargy, their injunction lapsed and summons remain unissued and unserved upon the Defendants to date resulting in the fact that the Defendants have never filed their defences. The excuse given by the Plaintiff is that the signing and issuance of summons is an administrative function that cannot be blamed on them. I disagree with them and rely on the authority cited by the Applicants being the case of North Atlantic Airways (K) Ltd versus Aviline Services Ltd ELC No 183 of 2010where the decision of Lord Denning in Reggentine versus Beecholme Bakeries Ltd (1967) III sol.jo 216 was quoted stating as follows:

“It is the duty of the Plaintiff’s advisers to get on with the case. Public policy demands that the business of the courts should be conducted with expedition. The delay is far beyond anything that can excuse. This action has gone to sleep for nearly two years. It should be dismissed for want of prosecution.”

I agree with this authority. I am not convinced that the Plaintiff has taken all the necessary steps to prosecute this suit and do therefore proceed to dismiss this suit for want of prosecution. I award the 1st, 3rd and 4th Defendants/Applicants the costs of this suit. It is so ordered.

SIGNED AND DELIVERED AT NAIROBI THIS 4thDAY OF JULY 2014

MARY M. GITUMBI

JUDGE