[2013] KEELC 141 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

ENVIRONMENTAL & LAND DIVISION

ELC CASE NO.258OF 2006

JOYCE WAMUHU

P. NJOKI

E. GITAU...........................................................................PLAINTIFFS

-VERSUS-

THE COMMISSIONER OF LANDS....................1ST DEFENDANT

RUTH KALEYKE........................................…..2ND DEFENDANT

RULING

Before me is the 2nd Defendants Notice of Motion dated 21st December, 2012 but filed in court on 14th January, 2013. The application is brought under Order 17 Rule 2(1) and (3) of the Civil Procedure Rules, Section 1A, 3A and all other enabling provisions of the Law and seeks the following orders:-

That this suit be dismissed as against the 2nd Defendant for want of prosecution.

That costs of this application be provided for;

The application is principally grounded on the following grounds:-

That the plaintiffs have not taken any step to prosecute their case for over one year.

That the plaintiffs do not have a reasonable or any cause of action against the 2nd Defendant.

That there is no prejudice which shall be caus3ed to the plaintiffs’ if this suit is dismissed as against the 2nd defendant.

The application is further supported on the grounds set out in the supporting affidavit sworn by Rustam Hira on behalf of the 2nd defendant on 2nd December, 2012. The 1st Plaintiff Joyce Mamuhu Gutau has sworn a replying affidavit dated 11th March, 2013 in opposition to the 2nd Defendants application and the parties have filed written submissions in support of their respective position in regard to the application.

A brief background to put the matter in context will in order. The plaintiffs filed the instant suit on 18th March, 1997 in Resident Magistrate’s Court at Nairobi (Sheria House) as RMCC No. 2004 of 1997. An interim order of injunction was granted in favour of the plaintiffs on 26th March, 1997 pending the hearing and final determination of the suit with the direction that the suit be heard on a priority basis. The suit was on 3rd March, 2006 ordered transferred to the High Court as the lower court did not have jurisdiction to hear and determine the case. From the record of the court file precious little happened in the matter between 2007 and 2011. On 12th July, 2011 Honourable Justice Mbogholi Msagha directed the parties to comply with Order 11 of the Civil Procedure Rules and directed a mention of the matter on 19th September, 2011.

As at 19th September, 2011 both the plaintiff and the 2nd defendant had made compliance with Order 11 of the Civil Procedure prompting the judge to order that a pre-trial conference be held on 18th October, 2011 for directions on hearing. The court record shows no party attended the court on 18th October, 2011 and the judge directed the file to be taken back to the court registry.

Nothing else happened on the file until 14th January, 2013 when the 2nd defendant filed the instant application.

The 2nd defendant vide the affidavit in support of the application states that the plaintiff vide a letter dated 28th October, 2011 invited parties to attend court to fix a date for hearing of the suit on 9th November, 2011 but as per the court record nothing happened on the date scheduled for fixing. The 2nd defendant states the delay in prosecuting this case by the plaintiff has been inordinate and that the plaintiff has no interest in prosecuting the suit. The 2nd defendant further contends that she has a good defence to the plaintiffs’ claim and in the interest of justice the plaintiffs’ suit ought to be dismissed as the matter has remained in indefinite abeyance.

The 1st Plaintiff in reply states that sometimes on 28th January, 2010 she was involved in a road accident that affected her mobility and that she has not been able to attend her advocate’s office to execute the necessary documents to make compliance with Order 11 of the civil Procedure Rules. The 1st plaintiff contends that she has been eager to have the case finalised but her incapacity has hampered her and urges the court to allow the matter to proceed to be heard and determined on merits.

I have considered the arguments and counter arguments advanced on behalf of the parties and reviewed the affidavits, annextures and submissions filed on behalf of the parties and now I have to decide upon the merits and/or demerits of the application before me. The 1st plaintiff states she got involved in an accident on 28th January, 2010 which to some extent immobilized her such that she could not attend her advocates office to sign the necessary documents. The medical report by Dr. Vincent Muoki Mutiso prepared on 12th July, 2010 marked “JW1” in the replying affidavit of the 1st Plaintiff states the 1st plaintiff was admitted for 5 days and that she walks with a crutch in her right hand. From the record the 1st plaintiff signed her witness statement dated 16th September, 2011 and the same was filed in court on the same date. As at 19th September, 2011 the parties had made compliance with Order 11 of the Civil Procedure Rules and the pre-trial conference scheduled for 18th October, 2011 which no party attended was to give directions on the hearing of the case.

The responsibility to prosecute a suit always remains with the plaintiff particularly where the defendant has not filed any counterclaim where there is lapse or delay on the part of the plaintiff in taking action towards the prosecution of the suit the plaintiff stands the risk that the defendant will apply for the dismissal of the suit for want of prosecution. In the event such an application is made by the Defendant as in the instant matter the plaintiff has to explain any delay in prosecuting the suit to the satisfaction of the court. The court has been referred to the cases of RAJESH RUGHANI VS. FIFTY INVESTMENTS LTD & ANOTHER (HCCC No. 3038 of 1996), E.A PORT LAND CEMNET CO. LTD VS. TAUSI ASSURANCE CO. LTD & ANOTHER (HCCC No. 1946 of 1994 – Milimani Commercial); and IVITA VS. KYUMBU [1984] KLR 141. All these cases lay the principles that a court needs to consider in an application seeking the dismissal of a suit for want of prosecution.

The general principle is that where there is a good reason for the delay and the delay is not inordinate the court should exercise its discretion in favour of sustaining the suit.

However as observed in the IVITA VS. KYUMBU case (Supra)

“Where the Defendant satisfied the court that there has been prolonged delay, and the plaintiff does not give sufficient reason for the delay the court will presume that the delay is not only prolonged but it is also inexcusable, and in such case, the suit may be dismissed.”

The present case was filed way back in 1997 and as observed earlier in this ruling there appears to be periods of time when hardly anything was happening (2007 to 2011). Nonetheless when the parties woke up from their slumber and virtually had the suit ready for trial (19th September, 2011) the parties once again went back to sleep until the 2nd Defendant awakened the plaintiff with the instant application in January, 2013. The 1st Plaintiff’s attempt at explaining the delay flies on the face as the plaintiff was even after the accident on 28th January, 2010 able to prepare and sign her witness statement in September, 2013. This leads me to believe and accept that the plaintiff did not infact have any good reason to explain the delay. The 1st Plaintiff was not confirmed as indicated the accident was in January 2010 and as per the medical evidence she was able to move about in July, 2010 albeit by use of a clutch and was infact able to sign her the affidavit in September, 2011 case such as this one which has been pending now for over 15 years doing justice may indeed be a mirage. In the words of Honourable Justice Chesoni (as he then was) in the IVITA VS. KYUMBU case (supra) it is easy to see how prejudice may arise as per the said judge’s observation therein as follows:-

“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 the disappearance of human memory resulting from lapse of time”.

The 2nd defendant has alluded to the fact that the suit property has since been transferred to a 3rd party (though no evidence has been tendered). While I attach no significance to this averment I nonetheless take the view that the lapse of time can affect the quality of the evidence at the parties disposal owing to the passage of time and faded memory.

Under Order 17 Rule 2(3) any party is given the liberty to apply for the dismissal of the suit where in any suit no application has been made or step taken by either party for one year. In the instant application I am satisfied that as at the time the 2nd defendant filed its application no party had taken any step in the prosecution of the suit for at least one year and considering the totality of the circumstances I find and hold the delay on the part of the plaintiffs was inordinate and inexcusable and I accordingly grant the 2nd defendants notice of motion dated 21st December, 2012 and grant the following orders:-

That the plaintiffs suit as against the 2nd Defendant be and is hereby dismissed.

That the plaintiff’s/Respondents do pay the 2nd Defendant/Applicant the costs of this application and the costs of the suit.

Orders accordingly.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 11TH DAY OF JUNE 2013.

J. M. MUTUNGI

JUDGE

In the presence of:

………………………………………….............……… for the Plaintiffs

……………………..............................…………. for the Defendants