[2023] KEHC 27552 (KLR)

Kanji & 2 others (AB Patel & Patel Advocates) v Karimbhai (Civil Suit 114 of 2018) [2023] KEHC 27552 (KLR) (17 November 2023) (Ruling)

Neutral citation: [2023] KEHC 27552 (KLR)

Republic of Kenya

In the High Court at Mombasa

Civil Suit 114 of 2018

F Wangari, J

November 17, 2023

Between

Vikram Chhotalal Kanji

1st Plaintiff

Sanjeev Khagram

2nd Plaintiff

Faiyaz Anjarwalla

3rd Plaintiff

AB Patel & Patel Advocates

and

Kurbanhussein Mulla Karimbhai

Defendant

Ruling

1. This is a Ruling is in respect to the Notice to Show cause why the suit should not be dismissed for want of Prosecution, which notice was issued by this court under the provisions of Order 17 Rule 2 of the Civil Procedure Rules.

2. The Plaintiff through Khagram Advocate filed an affidavit showing cause why the matter should not be dismissed. An affidavit dated 5/9/2023 was filed and served upon the Defendant.

3. It was sated that when the matter was last in court on 29/11/2018 before Hon. Justice Waithaka, of the Environment and Land Court, it was directed that since the said court had no jurisdiction to hear the matter, the file be placed before the Presiding Judge, High Court for directions.

4. The Plaintiffs were not notified when the file was transferred to the High Court Registry. The file could not be traced. Several “Service Registration Forms” issued by the High Court Registry were attached as proof that the Plaintiffs were making efforts to have the file traced, but in vain.

5. The Defendants despite being served with the NTSC, the Affidavit by the Plaintiff and the hearing notice, did not file an affidavit in support of the NTSC and neither was there an appearance in court.

Analysis 6. The single issue for my determination is whether the suit herein should be dismissed for want of prosecution. Order 17 Rule 2(1) of the Civil Procedure Rules provides, inter alia: -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.

7. The test on dismissal of suits for want of prosecution was laid in Mwangi S. Kimenyi -vs- Attorney General and Another [2014] eKLR, when the court restated the test as follows: -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. However, it should be understood that prolonged delay alone should not prevent the court from doing justice to all the parties- the plaintiff, the defendant and any other third or interested party in the suit; lest justice should be placed too far away from the parties.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 inordinate and inexcusable; 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 in 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 test, the court is not assisting the indolent, but rather it is serving the interest of justice, substantive justice on behalf of all the parties.”

8. As deponed in the affidavit, the court file had gone missing after being transferred from the Environment and Land Court to the High Court. The Plaintiff’s evidence that the followed up with the High Court registry has not been challenged. The delay in having this matter fixed for action before this court for over one year has been explained.

Determination 9. Following the foregone discourse, the upshot is that the following orders do hereby issue: -a.The Plaintiff has shown cause why the suit should not be dismissed for want of prosecution.b.To ensure that there is no more delay, it is hereby directed that the parties do comply with Order 11 of the Civil Procedure Rules within the next 21 days.c.Each party to bear its own costs.Orders accordingly.

DATED, SIGNED AND DELIVERED AT MOMBASA THIS 17TH DAY OF NOVEMBER, 2023……………………F. WANGARIJUDGEIn the presence of;Ms. Essajee Advocate for the PlaintiffN/A by the DefendantMr. Barille, Court Assistant