[2017] KEHC 616 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KERICHO

CIVIL CASE NO. 104 OF 2015

JOHN SANG…………………………………......….…. PLAINTIFF

VERSUS

PHILIP KORIR………………………………..…....…DEFENDANT

RULING

Introduction

1. What is before me for determination is a Notice of Motion dated 22nd November 2016. The said notice of Motion is brought pursuant to sections 1A, 1B and 3A of the Civil Procedure Act and Order 45 Rule 1&2 of the Civil Procedure Code. The Defendant seeks for orders that the Plaintiffs suit be dismissed for want of prosecution.

2. The application is anchored on the grounds stated on the face of the Notice of Motion and on the applicant’s supporting affidavit sworn on the 22nd November 2016. The applicant depones that the suit was filed in September 2011 and the last time it was in court was on 1st March 2012. He further depones that it is apparent that the plaintiff/ respondent has lost interest in the case and the same should be dismissed with costs.

3. The application is opposed by the respondent through his Replying Affidavit sworn on the 7th June 2017. The respondent does not deny that the matter was last in court in march 2012 but he refutes that claim that he has lost interest in the case. He depones that the main reason for the delay in prosecuting the case is that there was a breakdown of communication between him and his advocate but the same has since been restored. He further depones that this being a land matter, it would serve that interests of justice if the case is heard on its merits so that the issues in controversy can be resolved.

4. The application was canvassed by way of written submissions and the counsels for the applicant and the respondent filed their submissions.

Applicant's Submissions

5. In his brief submissions, learned counsel for the applicant submitted that that the delay in prosecuting the suit was inordinate and it was causing the applicant mental anguish.

Respondent's Submissions

6. On the other hand, learned counsel for the respondent relied on the case ofUtalii Transport Company Limited & 3 others V NIC Bank Ltd & Another (2014) eKLRwhich laid down the principles that the court ought to apply in applications for dismissal of a suit for want of prosecution as follows:

I. Whether there has been inordinate delay on the part of the plaintiff in prosecuting the matter

ii. Whether the delay by the plaintiff is intentional, contumelious and therefore inexcusable

iii. Whether the delay is an abuse of the court process

iv. Whether the delay will occasion substantial risk to a fair trial to the defendant

v. Whether the dismissal of the suit would occasion substantial prejudice to the plaintiff

vi. Who bears the costs of the application?

7. The above issues boil down to the length of delay and whether that delay has been explained to the satisfaction of the court. The question as to whether or not there has been inordinate delay will normally depend on the circumstances of the case. The court in the Utalii Transport case cited above held as follows:

“Whereas there is no precise measure of what amounts to inordinate delay, and whereas what amounts to inordinate delay will differ from case to case depending on the circumstances of each case, the subject matter of the case, the nature of the case the explanation given for the delay and so forth. Nevertheless, inordinate delay should not be difficult in ascertaining once it occurs; the litmus test being that it should be an amount of delay which leads the court to an inescapable conclusion that it is inordinate and therefore inexcusable… inordinate delay for purposes of dismissal of a suit for want of prosecution should be one which is beyond acceptable limits”

8. In the instant case the delay is indeed long but the court must consider the circumstances of the case and the reasons for the delay. In his replying affidavit the respondent explained that there was a breakdown of communication between him and his advocate and that this has since been restored. He also states that he is still keen on prosecuting his case. This shows that the delay was not intentional.

9. In the case of Jimmy Wafula Simiyu V Fidelity Commercial Bank Ltd (2014) eKLR Gikonyo J held as follows:

“…No doubt the court has discretion to excuse delay as long as it has been explained to the satisfaction of the court. The satisfaction will come from the explanation given and the fact that the delay causes no substantial prejudice to a fair trial to one of the parties or both. Therefore, the fact of delay does not seal the fate of the case...”

Conclusion

10. I have carefully considered the Notice of Motion, the supporting affidavit, replying affidavit, the pleadings herein as well as the rival submissions. The applicant has not placed any material before the court to suggest that he will be prejudiced if the case is allowed to proceed. Both the Plaint and defence raise triable issues which ought to be adjudicated by the court. This being a land matter, it is just and fair that the case be determined on the merits.

11. Accordingly, I decline to grant the orders sought and direct that the parties comply with order 11 of the Civil Procedure Rules within the next 30 days so as to pave way for an expeditious disposal of the case.

12. The costs of the application shall be in the cause.

Dated, signed and delivered at Kericho this 6th day of December 2017

J.M ONYANGO

JUDGE

In the presence of:

Mr Koko for the Plaintiff

No appearance for the Defendant

Court assistant: Rotich