[2017] KEHC 9745 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL DIVISION

HIGH COURT CIVIL CASE NO. 381 OF 2009

JOHN OKAL OGWAYO...........................1ST PLAINTIFF/RESPONDENT

RUTH REBECCA AUMA........................2ND PLAINTIFF/RESPONDENT

(suing as the administrators and Personal Representatives of the

estate of Nevil Sira OkalDeceased)

VERSUS

DR. PETER W. MASINDE........................1ST DEFENDANT/APPLICANT

DR. ANDREW C. KIBET.................................................2ND DEFENDANT

THE KAREN HOSPITAL LTD .................3RD DEFENDANT/APPLICANT

RULING

1. The application dated 16th July, 2015 was filed by the 1st Defendant/Applicant Dr. Peter W. Masinde seeking orders that the suit herein be dismissed for want of prosecution. It is stated in the supporting affidavit that this suit was filed on 13th July, 2009 but no step has been taken since 18th April, 2013 to prosecute the same. That the suit hangs over the 1st Defendant’s/Applicant’s head and should therefore be dismissed.

2. The 3rd Defendant The Karen Hospital Ltd, filed a similar application dated 10th September, 2010. The 3rd Defendant alleges inordinate delay on the part of the Plaintiffs. It is stated in the affidavit in support that the delay in prosecuting this case is prejudicial to the 3rd Defendant who may not be able to secure the evidence of it’s witnesses due to the lapse of time

3. In opposition to the two applications, a replying affidavit was sworn on 1st February, 2016 by Prof. Kiama Wangai, the former advocate on record for the Plaintiffs. A supplementary affidavit was sworn and filed on 9th November, 2016 by Ms Ngugi Mwaniki & Co Advocates, the current advocates for the 1st and 2nd Respondents. The delay in prosecuting this case is blamed on a Preliminary Objection dated 19th November, 2012 and an application dated 5th December, 2012 objecting to the continued participation of Prof. Kiama Wangai as the Plaintiffs’ counsel on grounds that he was a potential witness. That the said application was determined but the Preliminary Objection is yet to be determined. It is stated that Prof. Kiama Wangai stopped acting for the Plaintiffs to avoid further delay in the hearing of this case. It is further stated that the Plaintiffs should not be condemned unheard and that the suit ought to proceed on merits.

4. During the hearing of the two applications, the parties opted to file written submissions. All the parties filed their submissions except the 2nd Defendant. I have considered the submissions filed.

5. Order 17 (2) Civil Procedure Rules provides for dismissal of suit’s as follows:

“(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) The court may dismiss the suit for non-compliance with any direction given under this Order.”

6. The principles governing the dismissal of a suit for want of prosecution are that delay must be inordinate, the inordinate delay is inexcusable and the Defence is likely to be prejudiced. As stated in the case of Ivita vs Kyumbu [1984] KLR 441:

“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 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 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 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.”

7. The deponent of the replying affidavit, Prof. Kiama Wangai described himself as the former advocate for the Plaintiffs who subsequently withdrew from the conduct of this case on behalf of the Plaintiffs. The replying affidavit was drawn and filed by Prof. Kiama Wangai & Co Advocates. The firm of Ngugi Mwaniki Advocates had on 1st December, 2015 filed the Notice of change of Advocates dated 20th May, 2015 on behalf of the Plaintiffs. It is an anomaly for the Prof. Kiama Wangai to draw and file a replying affidavit while describing himself as the Plaintiffs’ former advocate when the change of advocates had already been effected. Consequently the said replying affidavit is struck out.

8. It is noted that although the supplementary affidavit was drawn and filed by the firm of Ngugi Mwaniki & Co Advocates, the same refers to the response raised in the aforestated replying affidavit of Prof. Kiama Wangai which I have struck out. However, the supplementary affidavit has also raised the issue of the delay caused by the applications filed which were settled on 1st February, 2016. The Notice of Change of Advocates by Ngugi Mwaniki & Co Advocate filed on 1st December, 2015 in my view settled the issue of the objection raised against Prof Kiama Wangai as counsel for the Plaintiffs. Prior to that, the Plaintiffs had not taken any step in this suit from the date of the last mention in court on 18th April, 2013. The 2nd Defendant had also not taken steps to prosecute their application and the Preliminary Objection objecting to Prof. Kiama Wangai as the Plaintiffs’ counsel. The Plaintiffs cannot therefore be wholly blamed for the delay.

9. It is noted that there is a new firm of advocates now on record for the Plaintiffs. My view is that the interests of justice would be served by proceeding to hear the case on merits on priority basis. Consequently, I dismiss the two applications herein with costs in cause. The Plaintiffs to fix the suit for pre-trial directions within the next 6o days from the date hereof. In default the suit to stand dismissed.

Date, signed and delivered at Nairobi this 8th day of Nov., 2017

B. THURANIRA JADEN

JUDGE