[2014] KEHC 1890 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

CIVIL SUIT NO. 177 OF 2006

KANIKI KARISA KANIKI …..............................................................PLAINTIFF

V E R S U S

1. COMMERCIAL BANK LIMITED...................................... 1ST DEFENDANT

2. GIRO COMMERCIAL BANK LTD...………………….....2ND DEFENDANT

3. MIATHENGE – MALINDI ENTERPRISES LIMITED…...3RD DEFENDANT

RULING

1. Notice of Motion before Court is dated 10th October 2013 filed by 1st And 2nd Defendants (the Applicants). It is brought under Order 17 Rule 2(3) of the Civil Procedure Rules. It prays for an order of the dismissal of the suit for want of prosecution.

2. Plaintiff filed this suit on 21st July 2006 seeking orders that the sale of his property Plot 2363 Malindi by 1st and 2nd Defendants to the 3rd Defendant was a nullity; a declaration that the interest charged on his loan accounts was unreasonable and oppressive; and injunction to restrain 3rd Defendant from selling or dealing with the Plot 2363; and an order for the Registrar to cancel the transfer to 3rd Defendant of Plot 2363.

3. By this Court's Ruling of 25th May 2007 the Court granted Plaintiff interlocutory injunction restraining selling, or dealing with Plot 2363 until determination of the suit.

4. Although the Applicants have by their application set out the chronology of this case on my own perusal I have found as that that chronology is not entirely correct. The correct chronology is that Plaintiff's interlocutory application for injunction was not concluded until 25th May 2007. After that period and until the year 2009 there was a lull on all sides with no party taking any action in this matter.

5. On 20th May 2009 1st and 2nd Defendants filed their list of documents which was followed by Plaintiff filing his on 25th October 2010 and by 3rd Defendant who filed his on 26th May 2010. The matter was fixed for hearing of the main suit on 21st May 2009 and a Chamber Summons filed by 3rd Defendant dated 10th June 2008 was also fixed for hearing on that very day, 21st May 2009. None of those hearings proceeded that day. That Chamber Summons prayed for an order for the suit against 3rd Defendant to be struck out for not disclosing reasonable action. After that the record shows that parties were engaged in fixing for hearing that Chamber Summons which was finally heard and determined by the Ruling of this Court of 16th July 2009. The Chamber Summons by that Ruling was dismissed.

6. I have considered the parties submissions in support of the application and the authorities relied upon by the Applicants. I will proceed to refer to those authorities because they do set out the principles that would guide the Court when considering an application for dismissal for want of prosecution.

7. In the case: ALLEN -Vs- SIR ALFRED McALPINE & SONS LTD [1968]1 ALL ER 543 Salmon LJ stated-

“When delay in the conduct of an action is prolonged or inordinate and is inexcusable, the natural inference in the absence of credible excuse, and there is substantial risk by reason of the delay that a fair trial of the issues will no longer be possible or that grave injustice will be done to one party or the other, or to both parties, the Court may in its discretion dismiss the suit straight away, without giving the Plaintiff an opportunity to remedy the default.”

8. In MOBILE KITALE SERVICE STATION -VS- MOBIL OIL KENYA LTD & ANOTHER (2004)1KLR Justice Warsame (as he then was) held-

“... It is in the interest of justice that litigation must be concluded expeditiously and efficiently so that injustice caused by delay would be a thing of the past. Justice would be better served if we dispose matters expeditiously.”

9. Kneller J in the case E. T. MONK & CO. LTD -VS- EVANS (1985)KLR 584 held-

“... A trial would be prejudicial to the Defendants as important witnesses may no longer be traced. There is no duty on the Defendants to keep in touch with their witnesses over such a period.”

10. As stated before the parties, and more particularly Plaintiff and 3rd Defendant, spent their energies fixing for hearing the full suit as well as the then pending Chamber Summons of 10th June 2008 and the clash of both ended in neither of them being heard. The record also shows that Plaintiff on a date not shown, at the Registry, fixed this case for full hearing on 3rd December 2013. The case was removed by the Court from the hearing list of 3rd December 2013 because the Judge presiding in the Civil Commercial and Admiralty Division was due to attend a Training Course. The Plaintiff therefore as it is evident from the above chronology has not entirely failed to move on with his case.

11. The Plaintiff in his replying affidavit did state that he was struck down with illness particularly in the years 2011 to 2014. In my view however the annexed Medical Records do not show that Plaintiff was incapable of attending the hearing of this case.

12. The Applicant deponed that their employees who had personal knowledge of this case had left their employment and if the case was fixed for hearing they would therefore be prejudiced. Justice Lesiit in the case COMMUNICATION COURIER & ANOTHER -Vs- TELCOM (K) LTD [1999]eKLR in discussing application for dismissal for want of prosecution and possible prejudice to the Defendant stated that-

“The Defendant must however satisfy the Court that he will be prejudiced by the delay ...”

13. The Defendants/Applicants are banking institutions. It is expected that their evidence in this case would be reliant on documentation. It is therefore hard to understand how the leaving of employment of their employee can affect such evidence. It was not enough for the Applicants to simply state they would be prejudiced without particularizing how they would be prejudiced. No names were even mentioned of those former employees who had left their employment. Defendant therefore failed to show what prejudice, if any, they would suffer if the suit was not dismissed for want of prosecution.

14. I do however find that the interest of justice is not at all served by a case that has been on record for now eight (8) years without conclusion. Further the Plaintiff has continued to enjoy an order of injunction which was first issued exparte on 17th October 2006 and which was confirmed by the Ruling of 25th May 2007. Justice needs to be balanced. This was so stated by the Court of Appeal in the case BENJOH AMALGAMATED LIMITED & ANOTHER -VS- KENYA COMMERCIAL BANK LIMITED [2014]EKLR viz-

“Courts of Law exist to administer justice and in so doing they must of necessity balance between completing rights and interests of different parties but within the confines of Law, to ensure the end of justice are met.”

15. In attempting to balance the parties rights I will dismiss the application but will require the Plaintiff to fix this case for hearing within a limited time failing which the suit will stand as dismissed.

16. The Court grants the following orders-

(a)The Notice of Motion dated 10th October 2013 is dismissed and the costs, thereof, shall be in the cause.

(b) The parties are hereby ordered to file and serve each other within thirty (30) days from today's date with the following-

(i) paginated documents arranged in the order inwhich they shall be adduced at the hearing.

(ii) witness statements.

(c) If documents and statements set out in (b) above are not served within the period of thirty (30) days no party shall rely on those documents or witness evidence at the hearing of the casewithoutthe leave of the Court.

(d) The Plaintiff shall fix this case for full hearing on or before the last day of March 2015 and in default this suit shall stand as dismissed with costs to Defendants.

DATED and DELIVERED at MOMBASA this 6TH day of NOVEMBER, 2014.

MARY KASANGO

JUDGE