[2021] KECPT 556 (KLR)

REPUBLIC OF KENYA

IN THE CO-OPERATIVE TRIBUNAL AT NAIROBI

MISC. APPL. TRIBUNAL CASE NO.5 OF 2013

JOHNSON WAWERU KARIUNGI & 15 OTHERS....................CLAIMANT

VERSUS

REGISTRAR OF CO-OPERATIVE SOCIETIES............1ST RESPONDENT

KIBIRIGWI FARMERS CO-OPERATIVE

SOCIETY LIMITED.............................................................2ND RESPONDENT

RULING

What is before us for consideration and determination is the 2nd Respondent’s Application dated 16. 4.2018. It seeks for Orders inter alia:

a. That this Appeal was initiated in 2002 and given the current number in the year 2013;

b. That the Appellants have failed, refused and/or neglected to fix this Appeal for hearing and/or take any other step to progress the matter;

c. That the Appeal was last in court on 22nd August 2014 when the Appellants were granted 21 days to file and serve their record of Appeal. Since then no action has been taken by the Appellants;

d. That to file an Appeal and fail to prosecute it amounts to an abuse of the process of the court and thus this appeal is liable for striking out for want of prosecution under the inherent jurisdiction of this court; and

e. That it is only fair and just for the appeal be dismissed with costs.

The Application is supported by the grounds on its face and the Affidavit sworn by C.K. Kiplagat on 10. 4.2018. The Respondent has opposed the Application vide the Replying Affidavit sworn by Paul Wachiuri Muhoro on 3. 9.2018.

Vide the directions given on 10. 9.2020, the Application was canvassed by way of written submissions. The 2nd Respondent filed its submissions on 5. 11. 2020. Despite service of the said directions, the Appellants have not field their submissions.

2nd Respondent’s Contention

It is the 2nd Respondent’s Contention that since the Appeal was filed in the year, 2002, the Appellants have never taken any step to prosecute it. That the matter was last in court on 22. 8.2014 when the Appellants were granted leave of 21 days to file and serve their record of Appeal.

Appellant’s Case

Vide the Replying Affidavit of Paul Wachiuri Muhoro sworn on 31. 9.2018, the Appellants confirmed that they indeed initiated the Appeal in the year, 2002. That they subsequently sought leave to amend it in the year 2014. That some of the Appellants are deceased and that some of the beneficiaries of their estates are pursuing succession. That the process of succession is proving to be tedious as getting hold of the personal representatives of some of the said Appellants are proving to be tedious.

Issues for determination

The 2nd Respondent’s Application dated 16. 4.2018 has presented the following issues for determination:

a. Whether the instant Appeal should be dismissed for want of prosecution;

b. Who should meet the costs of this Application?

Dismissal for want of prosecution

Order 17 Rule 2 of the Civil Procedure Rules provides for a framework for dismissal of a suit for want of prosecution. The court in the case of George Gatere Kibata – vs- George Karia Mwaura & Another [2017] eKLRgave the factors to be taken into account before dismissing a suit for want of prosecution in the following terms:

“.....There are three key questions to be answered ...... The first one is whether the Applicant has satisfied the statutory threshold set out under Order 17 Rule 2 of the Civil Procedure Rules. The second question is whether there has been inordinate and inexcusable delay on the part of the Plaintiff. The third question is whether it would cause grave injustice to the Defendants if this case were to be allowed to proceed to trial notwithstanding any preceding delay on the part of the plaintiff...”

Order 17 Rule 2 provides thus:

“ 2 (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. “

The court in the case of Mwangi S. Kimenyi – vs- AG Misc. Appl. NO. 720/2009, further gave clarity to the foregoing principles in the following terms:

“ 1. When the delay is prolonged and inexcusable, such that it would cause grave injustice to the one side or the other or to both, the court may in its discretion dismiss the action straight away.

2. Invariably, what should matter to the court is to serve substantive justice through judicious exercise of discretion which is to be guided by the following issues: 1. Whether the delay has been intentional and contumelious; 2. Whether the delay or the conduct of the Plaintiff amounts to an abuse of the court; 3. Whether the delay is inexcusable and inordinate; 4. Whether the delay is one that gives rise to a substantial risk to fair trial in that it is not possible to have a fair trial of issues an action or causes or likely to cause serious prejudice to the Defendant; and 5. What prejudice will the dismissal cause to the Plaintiff.

By this fast, the court as is not assisting the indolent, but rather, it is serving the interests of justice, substantive justice on behalf of the parties..”

We summarize the foregoing principles as follows:

a. That firstly, a party seeking dismissal of a suit for want of prosecution must satisfy the legal requirement of the one year threshold set out in Order 17 Rule 2;

b. That once the legal requirement is satisfied, the party must demonstrate that there has been inordinate and inexcusable delay in prosecuting the matter;

c. Thirdly, the party must demonstrate that he will be greatly prejudiced if by the delay if the suit were to be allowed to proceed to trial.

d. Finally, the party must demonstrate that owing to the delay, a fair trial cannot be achieved.

Coming to the circumstances of this case, the question that were pause is whether the instant Application has met the foregoing principles. We consider the said principles individually as follows:

One year legal threshold

We are satisfied that the instant Application meets the one-year legal threshold set out in Order 17 Rule 2 of the Civil Procedure Rules. The matte was last in court on 22. 8.2014, which the instant Application was originated on 11. 4.2018. This is a period of approximately three years 7 months.

Inordinate delay

We look at this principle in the context of the age of the claim and the legal principle set out in Order 17 Rule 2 above. As regard the age of the matter, it is not in dispute that this Appeal is over 20 years old. It was filed in the year 2002. Secondly, the Appellants have never shown interest to prosecute the Appeal since 22. 8.2014 when the Claimant were granted leave of 21 days to amend the same. We are thus convinced that there has been inordinate delay to prosecute the Appeal.

Whether the Respondent will be prejudiced if we allow the Appeal to proceed to trial

It’s our finding that the continued pendency of the Appeal will cause a lot of prejudice of the Respondent’s especially the 2nd Respondent. The 2nd Respondent continues to incur costs on a matter which the owners are not keen to move it forward.

Fair trial

It’s our finding that because of the delay to prosecute the Appeal, fair trial cannot be achieved. This has been compounded by the contentions of the Appellants that it is not known when they will put their house in Order in terms of substitution of deceased Claimants. The deponent of the Replying Affidavit has admitted that it has proved futile to locate the personal representatives of deceased Claimants.

Conclusion

When all is said and done, we find that the 2nd Respondent’s Application dated 16. 4.2018 has merit and allow it on terms that the Appeal herein is hereby struck out with costs to the 2nd Respondent. Orders accordingly.

Ruling signed, dated and delivered virtually this 28th day of January, 2021.

Hon. B. Kimemia Chairperson Signed 28. 1.2021

Mr. B.Akusala Member Signed 28. 1.2021

Mr. R. Mwambura Member Signed 28. 1.2021

No appearance for both parties.

Hon. B. Kimemia Chairperson Signed 28. 1.2021