[2017] KEHC 3802 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL SUIT NO. 210 OF 2014

HON. JOSEPH KAHANGARA ……….....…PLAINTIFF/RESPONDENT

VERSUS

KENYA BROADCASTING

CORPORATION ……………………………1ST DEFENDANT/APPLICANT

MINISTRY OF INFORMATION COMMUNICATION

AND TECHNOLOGY………………………………………..2ND DEFENDANT

ATTORNEY GENERAL……………………………………..3RD DEFENDANT

RULING

1. The 1st defendant/Applicant herein filed a notice of motion dated 13th April 2016 seeking to dismiss the plaintiff’s suit for want of prosecution. The motion is supported by the affidavit of Paul Jilani. He contends that since the filing of the suit, the plaintiff has for a period of over a year failed to fix the matter for hearing. It is averred that there is no justifiable ground for such delay, refusal or neglect to prosecute the suit resulting in an abuse of the court process. It is for these reasons that the applicant has asked the court to dismiss the suit with costs for want of prosecution.

2. The plaintiff has opposed the application vide a replying affidavit sworn by Nicholas Nyaga Njagi on 6th July, 2016. He avers that failure to fix the matter down for hearing was not deliberate. Rather, it was occasioned by out - of -court negotiations between the plaintiff and the first defendant which is in the interest of justice and in pursuit of a swift and speedy resolution as the parties should be allowed to negotiate with a view of reaching an amicable settlement.

3. The court has considered the application and the submissions by the parties.

4. Substantively, dismissal of suits for want of prosecution is provided for under Order 17 rule 2 of the Civil Procedure Rules. This provision stipulates 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.

(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 under sub-rule 1.

(4) The court may dismiss the suit for non- compliance with the directions given under this Order.”

5. For a suit to be dismissed for want of prosecution, it must be shown that; there was delay which must be inordinate; the inordinate delay is inexcusable and the defendant is likely to be prejudiced by the delay. Chesoni, J. [as he then was] applied these principles in the case of IVITA V KYUMBU, [1984] KLR, 441. He stated as follows;

“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.”

6. The same principles are espoused in the case of MWANGI S. KIMENYI V ATTORNEY GENERAL & ANOTHER [2014] EKLRand NBI HCCC UTALII TRANSPORT COMPANY LIMITED & 3 OTHERS v NIC BANK & ANOTHER [2014] eKLRas follows:

a) Whether there has been inordinate delay on the part of the Plaintiffs in prosecuting the case;

b) Whether the delay is intentional, contumelious and, therefore, inexcusable;

c) Whether the delay is an abuse of the court process;

d) Whether the delay gives rise to substantial risk to fair trial or causes serious prejudice to the Defendant;

e) What prejudice will the dismissal occasion to the plaintiff?

f) Whether the plaintiff has offered a reasonable explanation for the delay;

g) Even if there has been delay, what does the interest of justice dictate: lenient exercise of discretion by the court?

7. The respondent’s explanation for the delay is that they were in negotiations with the applicant seeking to find an amicable out of court settlement in the matter. Further, the respondents claim that the said negotiations were initiated by the applicant; a claim that the applicant has denied. All in all, the respondent did not adduce any evidence to support their claim of on-going negotiations.

8. InMWANGI S. KIMENYI V ATTORNEY GENERAL & ANOTHER supra, Gikonyo Jhad this to say regarding inordinate delay:

“…There is no precise measure of what amounts to inordinate delay. 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 on and so forth. Nevertheless, inordinate delay should not be difficult to ascertain 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. Caution is, however, advised for courts not to take the word ‘’inordinate’’ in its dictionary meaning, but to apply it in the sense of excessive as compared to normality. Therefore, inordinate delay for purposes of dismissal for want of prosecution should be one which is beyond acceptable limits in the prosecution of cases.”

9. In the absence of any evidence to support the assertion that there are on-going negotiations for an out of court settlement, I find the respondent has not explained the delay but in the interest of justice, this court will give him a chance to prosecute his suit.

10. Therefore, I hereby order that the Notice of Motion application dated the 13th of April 2016 is dismissed but with costs to the Applicant. Further, in keeping with the spirit of the overriding objective principles with regard to expeditious disposal of cases, the court orders that the suit be prosecuted within 120 days from today; failure to which is shall stand dismissed.

Dated, signed and delivered at Nairobi this 14th day of July, 2017

…………………

L. NJUGUNA

JUDGE

In the presence of:

………………………….. For the plaintiff/Respondent

………………………… For the 1st Respondent/Applicant

………………………..For the 2nd Respondent/Applicant

…………………………For the 3rd Respondent/Applicant