[2019] KEELC 3684 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT MOMBASA

ELC NO.509 OF 2011

KALLISTE LIMITED...............................................PLAINTIFF

VERSUS

BAKARI BENDERA & 77 OTHERS...............DEFENDANTS

RULING

1. By a Notice of Motion dated 31st July, 2018 the 7th, 12th, 14th, 15th, 16th, 17th, `8th, 22nd, 23rd, 24th, 25th, 26th, 27th, 28th, 29th, 31r, 32nd, 34th, 38th, 39th, 42nd, 43rd, 46th, 47th, 48th, 49th, 50th, 52nd, 53rd, 63rd, 64th, 66th, 67th, 70th, 71st, 73rd, 74th, 75th and 77th Defendants/Applicants seek for orders that the Plaintiff’s suit against them be dismissed with costs for want of prosecution.

2. The Application is brought under the provisions of Order 17 Rule 2(1) and (3) of the Civil Procedure Rules. The Application is premised on the grounds:

i. The plaint was filed on 16th September 2011.

ii. The defence was filed on 25th January 2012 and pleadings closed in February 2012.

iii. The Plaintiff herein entered a consent with some of the Defendants, represented by Apollo Muinde & Company Advocates and recorded a consent and a decree was issued on 2nd May 2013 against them.

iv. That from the said 2nd May 2013 the Plaintiff has not taken any action towards prosecuting the suit against (the Applicants)/Defendants.

v. The Plaintiff has lost interest in the suit against the aforesaid Defendants.

vi. The continued pendance of this suit is prejudicial to the listed Defendants.

3. The Application is supported by the affidavit of Mcmillan E. Jengo, advocate for the Applicants sworn on 31st July, 2018 in which he reiterates the grounds in support of the Application. He depones that the Plaintiff has never listed the matter down for hearing or pre-trial since the day of filing against the Applicants. That in the year 2013, the Plaintiff entered into a consent with the Defendants represented by the firm of Apollo Muinde & Company Advocates and a decree was issued on 2nd May, 2013, and that from that day up to date, the Plaintiff has not taken any action towards the prosecution of the case against the Applicants. It is the Applicants contention that the delay is inordinate and prejudicial to them. The Applicants further contend that the Plaintiff has violated the maxim that justice delayed is justice denied and that most of the Applicants witnesses have since died hence a fair trial cannot be possible in this matter much to the prejudice of the Applicants. That on 28th April 2017, the court issued a Notice to show cause why the suit against the Applicants should not be dismissed for want of prosecution. The Applicants aver that it is in the interest of justice and the rule of law that the Plaintiff’s suit against them be dismissed for want of prosecution.

4. The Application is opposed by the Plaintiff through a replying affidavit sworn by Jane Umara Advocate for Plaintiff sworn on 9th October, 2018. She depones that the Application is premature and does not meet the provisions of order 17 Rule 2(1) of the Civil Procedure Rules. That the matter has been in court severally and both the Plaintiff and the Defendants have in the process filed various Applications which have been determined. That the matter was last in court on 21st May 2018 when the court delivered a ruling on the Application dated 25th November 2015 filed by the Plaintiff. It is deponed that in the circumstances, it is mischievous and an abuse of the court process for the Applicants to allege that more than one year has lapsed hence seeking to have the suit dismissed for want of prosecution.

5. In his submissions, Mr. Jengo, Counsel for the Applicants submitted that no action has been taken to prosecute the suit against the Applicants since the year 2013 and therefore the Plaintiff’s suit against them should be dismissed for want of prosecution. Mr. Jengo further submitted that the Plaintiff is taking solace in a ruling which authorized the court bailiff to execute against certain Defendants. He argued that the Notice to show cause cannot have been issued against a case which had a decree but was issued in respect of the Plaintiff’s suit against the Applicants, which suit is still pending and had no decree.

6. Mrs. Umara, Counsel for the Plaintiff submitted that the Applicants filed the Application dated 15th July 2012 which was allowed on 28th May, 2014 hence cannot argue that no action has been taken since 2013. Mrs. Umara agreed that there is a decree dated 16th April 2013 and that it is true the Plaintiff’s action to execute the said decree that they filed the Application dated 25th November, 2015. Counsel wondered why the Applicants filed a Replying Affidavit in 2017 if no action was taken since 2013. Regarding the notice to show cause, counsel submitted that the court was informed of a pending ruling in the matter which ruling was delivered on 21st May, 2018. That the ruling was against all the Defendants but the orders granted did not affect the Applicants herein. Mrs. Umara submitted that this is an active file and urged the Court to dismiss the Application,

7. I have carefully considered the Application and the submissions made by counsel for the Applicants and for the Plaintiff. In my view, the only issue for determination is whether the Applicants have made out a case to warrant grant of the orders sought for dismissal of the suit against the Applicants for want of prosecution.

8. The legal basis for dismissal of suits for want of prosecution is the requirement of expediency in the prosecution of civil suits and can be found in Article 159(2) (b) of the Constitution that justice shall not be delayed. The courts are also empowered by Sections 1A and 1B of the Civil Procedure Act and Section 3 of the Environment and Land Court Act to ensure that the overriding objectives of the Civil Procedure Act and Rules are attained in the administration of justice in a just, fair and expeditious manner.

9. The procedural underpinning to the above substantive provisions of the constitution and the law is Order 17 Rule 2 of the Civil Procedure Rules which allows the court on its own motion or on notice to the parties, where no action in a suit has been taken for one year to either have the suit set down for hearing or apply to have it dismissed for want of prosecution. Order 17 Rule 2 of the Civil Procedure Rules stipulates thus:

“(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 order 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.”

10. Accordingly, it is permissible for any party to a suit to move the court for dismissal in situations where no Application has been made or step taken by either party for one year. Order 17 Rule 2 (3) gives the court the discretion to dismiss the suit where no action has been taken for one year and on Application by a party as justice delayed without explanation is justice denied and delay defeats equity. In the case of Ivita –v- Kyumba (1984) KLR 441, it was held:

“The test applied by the court in the Application for dismissal of a suit for want of prosecution is whether the delay is prolonged and inexcusable, and if it is, whether justice can be done despite the delay. Thus, even if the delay is prolonged, if the court is satisfied with the Plaintiff’s excuse for the delay, and that justice can still be done to the parties, the action will not be dismissed but it will be ordered that it be set down for hearing at the earliest time. It is a matter of and in the discretion of the court.”

11. The record does show that this suit was instituted on 16th September, 2011 vide a plaint of even date. The Plaintiff’s claim against the Defendants is for an order of eviction from PLOT NO. 1984/V/MAINLAND NORTH,a permanent injunction to restrain the Defendants by themselves, their servants, agents and/or otherwise from trespassing PLOT NO. 1984/V/MAINLAND NORTH and costs of the suit. The Defendants entered appearance on 5th October, 2011 and filed their statement of defence on 27th October, 2011 through M/s Omollo Muinde & Associates Advocates. Later some parties were added as Defendants and the Applicants herein appointed M/s Jengo Associates to act for them in place of Apollo Muinde & Associates Advocates. M/s Jengo Associates filed defence on behalf of the Applicants on 25th January, 2012.

12. The record shows that on 3rd December, 2012, M/s Joseph Munyithya & Company Advocates for the Plaintiff and M/s Apollo Muinde & Associates Advocates for some named Defendants filed a consent in which the Plaintiff’s suit against the said Defendants was marked as settled with no order as to costs. The said consent indicated that the said Defendants had received full compensation of their houses or structures on PLOT NO.1984/V/MAINLAND NORTH and they had authorized the Plaintiff to demolish their said structures which the said Defendants could not remove. The said consent was adopted as an order of the court and subsequently a decree was issued on 2nd May, 2013. It appears some of the said Defendants left the suit properly without demolishing their structures. This prompted the Plaintiff to file the Notice of Motion dated 25th November 2015 seeking orders authorizing the court bailiff to demolish the said structures. A ruling on the Application dated 25th November, 2015 was delivered by this court on 21st May, 2018. In the said ruling, the court granted the orders sought by the Plaintiff to the extent that it only applied to the Defendants who were represented by the firm of Apollo Muinde & Associates Advocates.

13. In the Replying Affidavit filed, the Plaintiff avers that the Application herein is premature and does not meet the provisions of Order 17 Rule 2(1) of the Civil Procedure Rules. The Plaintiff further avers that the matter has been in court severally and that both the Plaintiff and the Defendants have in the process filed various Applications which have been determined. The Plaintiff states that the matter was last in court on 21st May, 2018 when the court delivered the ruling on the Application dated 25th November, 2015.

14. As already stated, it is clear that the Application dated 25th November, 2015 was between the Plaintiff and the Defendants who are represented by M/s Apollo Muinde & Associates. That Application was basically to give effect to the decree that emanated from the consent signed by M/s Joseph Munyithya & Company Advocates and M/s Appollo Muinde & Associates Advocates on behalf of their respective clients. The consent and indeed the subsequent Application did not affect the Applicants herein who were not party to the said consent. However, the Applicants herein had participated in the said Application and filed their response. Indeed the Applicants were the only ones who opposed the said Application as the Defendants represented by Ms. Apollo Muinde & Associates did not file any response.

15. The record further shows that the Applicants herein filed their list of witnesses and statements on 7th December, 2015. It is clear that since then, no action has been taken by the Plaintiff towards prosecuting the suit against the Applicants herein. Indeed, on 28th April, 2017 the court issued notice under Order 17 Rule 2 of the Civil Procedure Rules for the parties to show cause why the case should not been dismissed. The notice to show cause came up on 15th May, 2017. The Plaintiff indicated that the matter was not ready for dismissal because the matter was last in court in June 2016. The Plaintiff’s advocate then requested for a date for the hearing of the Application dated 25th November, 2015.

16. As already stated, the Application dated 25th November 2015 was between the Plaintiff and the Defendants represented by M/s Apollo Muinde & Associates Advocates. It did not concern the Applicants herein. Even while pursuing the said Application, the Plaintiff took no action as regards the suit against the Applicants herein for over three years from 7th December, 2015 when the Applicants filed their list of witnesses and statements. That being the case, this court can only make an inference that the Plaintiff has lost interest in the suit against the Applicants. The Plaintiff was keen to pursue the matter as against the Defendants with whom they recorded a consent and did not deem it fit to take action with regard to the suit against the Applicants. The delay in setting down the matter for hearing no doubt prejudices the Applicants as justice delayed is justice denied. In my view, the Plaintiff has not given any excuse for its inaction. The Replying Affidavit filed by the Plaintiff with due respect, did not give the reason for inaction for over 3 years other than to state generally that the matter was active. It is true, the matter has been active but not with regard to the Plaintiff’s suit against the Applicants.

17. The court is aware that the act of dismissing a suit is a draconian measure which should be exercised cautiously as it drives the party from the judgment seat of justice. Nonetheless the court is bound to do justice to all parties without undue delay, which delay occasion injustice to either party to the dispute and in this case, delay defeats equity.

18. The Plaintiff filed suit, obtained consent judgment against some Defendants and failed take action against the suit against the Applicants herein. The Plaintiff has not been vigilant or at all to have its suit against the Applicants heard and determined. It is quite apparent that the Plaintiff has lost interest in the suit against the Applicants.

19. Even though it is the view of this court that the Plaintiff has not offered any explanation for not taking any step in the matter as against the Applicants from December, 2015 until when this Application was filed, I note that this is a dispute over land and the case has been active against some Defendants. Dismissal of the suit without hearing the merits would be a draconian act. In this regard, I wish to associate myself with the sentiments of Gikonyo, J in the of case Utalii Transport Company Ltd & 3 Others –v- Nic Bank in which he stated as follows:

“I am guided by a high sense of promoting the principles of substantive justice enshrined in the constitution and therefore convinced that the circumstances of this case deserve a lenient exercise of discretion by the court in favour of sustaining rather than dismissing the suit.”

20. Although there has been delay on the part of the Plaintiff to set down the matter for hearing, this court has not been shown that the delay though inordinate, is deliberate, contumelious and therefore inexcusable. In my view, in as much as there is delay, the interest of justice can still be served if the Plaintiff is given an opportunity to prosecute their case.

21. Accordingly, I decline to grant the Application dated 31st July, 2018 and hereby dismiss it. Costs of the Application to be in the cause. The parties are directed to comply with Order 11 of the Civil Procedure Rules, if they have not done so, within 30 days and thereafter the matter shall be set down for hearing.

Orders accordingly.

Delivered, signed and dated at Mombasa this 1ST April, 2019.

__________________

C. YANO

JUDGE

IN THE PRESENCE OF:

Egunza holding brief Jengo for Applicants

Mrs. Umara for Plaintiff

Ms. Barayan holding brief for Apollo for Defendants

Yumna Court Assistant

C.K. YANO

JUDGE