[2023] KEHC 23749 (KLR)

Karuri & another (Both suing as the administratix and Administrator of the Estate of Karuri Ng’Ang’A Njiru (Deceased)) v Mureithi & another (Civil Case 121 of 2009) [2023] KEHC 23749 (KLR) (18 October 2023) (Ruling)

Neutral citation: [2023] KEHC 23749 (KLR)

Republic of Kenya

In the High Court at Nakuru

Civil Case 121 of 2009

HM Nyaga, J

October 18, 2023

Between

Mary Wanjiru Karuri

1st Plaintiff

Zakaria Ng'ang;'a Karuri

2nd Plaintiff

Both suing as the administratix and Administrator of the Estate of Karuri Ng’Ang’A Njiru (Deceased)

and

Samuel Wachira Mureithi

1st Defendant

Wlifred Hiuhi Ngari t/a Goodhope Medical Centre

2nd Defendant

Ruling

1. This Ruling relates to the Respondent’s Notice of Motion dated 3rd August 2020, which the Applicants seeks the following orders: -i.That this suit be dismissed for want of prosecution.ii.That costs of this Application be provided for.

2. The application is supported by the affidavit sworn by Griffina Khomo on 3rd August, 2020 and it is opposed by the respondents vide the Replying Affidavit sworn by the 1st Respondent, Mary Wanjiku Karuri on 16th May,2023.

3. The applicants’ case is that the respondents instituted this suit vide a plaint filed on 28th April, 2009 and they entered appearance and filed their defence on 31st August, 2009. That thereafter the respondents filed a reply to defence on 1st October 2009 and parties signed a statement of agreed issues on the 22nd June, 2010. That the respondents have since then not prosecuted the case. They contend that when the matter was last in court on 3rd June,2014 the respondents told court that the 2nd Applicant was deceased and thus the suit against the 2nd Applicant has since abated and it is evident the respondents have no desire to prosecute this matter.

4. They state that this matter has been pending for over 10 years since it was last prosecuted and they beseech this court to dismiss the same for want of prosecution.

5. The Respondents opposed the application. Their case on the other hand is that they are desirous of pursuing this matter to the conclusion and that following the death of the 2nd Applicant, a Succession Cause was filed on behalf of his estate vide High Court Probate and Administration No.150 of 2013 which is still pending before court.

6. They aver that failure to have this matter fixed for hearing is excusable as they are awaiting letters of administration to allow them proceed further. They prayed that the Application be dismissed with costs.

7. The Application was canvassed by way of written submission.

Applicants’ Submission 8. The Applicants submitted that it has been over 13 years since the suit was filed and the respondents have not taken any steps to prosecute it to ultimate conclusion.

9. They argued that under Order 17 Rule 2 of the Civil Procedure Rules, the suit qualifies to be dismissed for want of prosecution if no step has been taken in the suit by either party for at least one year.

10. The Applicants argued that if the delay in prosecuting a matter is unsatisfactory the court may dismiss the case so as to prevent undue hardship occasioned to the defendant and to ensure cases are resolved expeditiously. Reliance was placed on the case of Nilesh Premchand Mulji Shah & Another t/a Ketan Emporium vs MD Popat and others & Another [2016] eKLR where the court stated as follows:“11. Nonetheless, Article 159 of the Constitution and 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. That discretion must be exercised on the basis that it is in the interest of justice regard being had to whether the party instituting the suit has lost interest in it, or whether the delay in prosecuting the suit is inordinate, unreasonable, inexcusable, and is likely to cause serious prejudice to the defendant on account of that delay.”

11. The applicants thus submitted that the respondents have not satisfactorily explained why they have not moved the court further and that the contention that succession cause is pending before the high court is frivolous since it is trite law that administrators of a deceased’s estate can substitute the deceased. This court was referred to the case of Rose Makokha Mteka vs Oserian Development Co. Limited [2022] eKLR where the court cited the case Mwangi S. Kimenyi vs Attorney General and Another, Misc. Civil Suit No. 720 of 2009, where the court restated the test to be taken into account while deciding whether or not to dismiss a suit for want of prosecution.

12. The Applicants submitted that the court should not assist the indolent but rather serve the interest of substantive justice on behalf of all parties.

Respondents’ Submissions 13. The Respondent cited the case of Argan Wekesa Okumu vs Dima College Limited & 2 Others [2015] eKLR where the court held that;“The principles governing applications for dismissal for want of prosecution include; that the applicant must show that the delay complained of is inordinate, that the inordinate delay was inexcusable and that the defendant is likely to be prejudiced by the delay.” ,

14. Also cited was the case of Naftali Opondo Onyango v National Bank of Kenya Limited (2005) eKLR where it was held that courts should be slow to dismiss matters for want of prosecution.

15. The respondents submitted that the factors leading to delay in prosecuting this case are beyond their control and as such the same cannot be said to be inordinate. They contended that it will be imprudent to proceed when the succession matter is still pending.

16. The respondents argued that the Applicants have not demonstrated what prejudice they are likely to suffer should the Application herein be dismissed. To bolster their submissions, reliance was placed on the case of Mwita Taruru vs Joseph Marwa Muniko & Another [2022] eKLR where the court while determining an application of this nature stated thus ;“This court has taken cognizance of the various activities that have been taking place and involved in the suit; this suit was transferred from Kisii sometimes in 2017, the plaintiff died hence necessitating his substitution and the process involved in the same from the chief’s letter, institution of the succession proceedings and the limited grant ad litem thereof to the family agreeing on a particular administrator and the subsequent substitution process. Though the delay has been prolonged, I find that the inaction was due to factors beyond the control of the plaintiff in the circumstances and hence the same is excusable.”

17. The respondent prayed that it is in the wider interest of justice that they be granted an opportunity to be heard and their case determined on merits.

DIVISION - Analysis & Determination 18. I have considered the application, affidavits and submissions filed. The issue for determination is whether the suit should be dismissed for want of prosecution, or if the respondent has put forth sufficient grounds not to do so.

19. The relevant law is Order 17 Rule 2(1) of the Civil Procedure Rules, which provides as follows;“(1)In any suit in which no application has been made or steps 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.(3)Any party to the suit may apply for its dismissal as provided in sub-rule 1. ”

20. From the foregoing provisions, an applicant seeking for dismissal of a suit for want of prosecution is only required to demonstrate that no action has been taken by either party for one year in the suit and that the failure was for no good cause.

21. Once the applicant has demonstrated the above points, the evidential burden shifts to the plaintiff to demonstrate that he was prevented by sufficient cause from taking steps towards prosecuting the suit.

22. The principles for dismissal of a suit set out by the Court in E.T. Monks & Company Limited vs Evan [1985] KLR 584 where Kneller J. said:“1. Whether an application for dismissal of suit for want of prosecution should be allowed or not is a matter for the discretion of the Judge who must exercise it judicially. The Court shall among other things, consider whether the delay was lengthy, whether it has rendered a fair trial impossible and whether it was inexcusable. However, each case will turn on its own facts and circumstances.2. If an action is dismissed for want of prosecution, a Plaintiff may sue his advocate for negligence unless such Plaintiff has caused or consented to the delay which led to the dismissal of the action.3. The delay in this case was inordinate and inexcusable and a trial would be prejudicial to the Defendants, as important witnesses may no longer be traced.”

23. In the case of Ivita vs Kyumbu [1984] KLR 441 the said principles were set out thus:“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 the disappearance of human memory resulting from lapse of time. The Defendant must however satisfy the court that it 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.”

24. My perusal of file discloses that after the filing on 22/6/2010 of a statement of agreed issues by the parties, they then appeared in court on 28th November,2011, and one of the Plaintiffs’ witness, ZAKARIA NG’ANG’A KARURI, testified. Thereafter the matter was adjourned to 16th February, 2012. Come this date the matter did not proceed. Nothing went on until 12th February 2013, when the case was fixed for hearing on 12th June 2013. The court record shows that after taking this date, another date of 29th April 2013 was taken by consent of the parties. The matter was then adjourned to 11th October 2013, then on 3rd June, 2014. On this last date, the Respondents’ Counsel informed court that the second defendant was deceased and sought for time to substitute him. This was confirmed by counsel for the applicant. From then no steps have been taken to prosecute this matter.

25. It is clear therefore that the Respondents have not moved the court for about 9 years now. The respondents explained that it was prevented from taking further action by the pendency of the succession cause in regards to the estate of the 2nd Applicant, who is deceased.

26. The above position is uncontroverted, but the Applicant posits that the same is frivolous since the 2nd Applicant can be substituted with an administrator of his estate.

27. The law under Order 24 Rule 4 of the Civil Procedure Rules mandates that upon death of a defendant and where the cause of action survives, then the plaintiff should make an application to cause the legal representative of the deceased defendant to be made a party to the suit.

28. It is true therefore as submitted by the Applicant, that the deceased can be substituted with an administrator of his or her estate. The Respondents have not annexed any evidence to prove that an administrator of the estate of the deceased herein has never been appointed considering the succession cause was filed in the year 2013. The respondents only stated that the succession cause is before High Court 3 and it was slated for mention for directions on 21st July, 2023. The purpose of those directions have not been disclosed.

29. Although the court was not informed of the exact date of the death of the 2nd defendant, it is clear that this was years ago. That being the case then the provisions of Order 24 of the Civil Procedure Rules kick in. The said Order provides as follows;“1. No abatement by party’s death if right survives.The death of a plaintiff or defendant shall not cause the suit to abate if the cause of action survives or continues.2. Procedure where one of several plaintiffs or defendants dies and right to sue survives.Where there are more plaintiffs or defendants than one, and any one of them dies, and where the cause of action survives or continues to the surviving plaintiff or plaintiffs alone or against the surviving defendant or defendants alone, the court shall cause an entry to that effect to be made on the record, and the suit shall proceed at the instance of the surviving plaintiff or plaintiffs, or against the surviving defendant or defendants.3. Procedure in case of death of one of several plaintiffs or of sole plaintiff(1)Where one of two or more plaintiffs dies and the cause of action does not survive or continue to the surviving plaintiff or plaintiffs alone, or a sole plaintiff or sole surviving plaintiff dies and the cause of action survives or continues, the court, on an application made in that behalf, shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit.(2)Where within one year no application is made under subrule (1), the suit shall abate so far as the deceased plaintiff is concerned, and, on the application of the defendant, the court may award to him the costs which he may have incurred in defending the suit to be recovered from the estate of the deceased plaintiff:Provided the court may, for good reason on application, extend the time.4. Procedure in case of death of one of several defendants or of sole defendant(1)Where one of two or more defendants dies and the cause of action does not survive or continue against the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant dies and the cause of action survives or continues, the court, on an application made in that behalf, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit.(2)Any person so made a party may make any defence appropriate to his character as legal representative of the deceased defendant.(3)Where within one year no application is made under subrule (1), the suit shall abate as against the deceased defendant.5. Determination of question as to legal representativeWhere a question arises as to whether any person is or is not the legal representative of a deceased plaintiff, or a deceased defendant, such question shall be determined by the court.

30. Therefore, it is clear that the suit against the second defendant has already abated. Thus, there is no suit pending against him that can be dismissed.

31. I will now deal with what is left of the suit, that is the case against the 1st defendant.

32. I have looked at the reasons advanced by the Respondent for failing to prosecute their case expeditiously.

33. Article 159 (2) (b) of the Constitution obligates Courts not to delay the dispensation of justice.

34. Lord Denning MR put it in Allen vs Sir Alfred McAlpine & Sons Ltd CA 1968 at pp 546 & 547 stated:“The delay of justice is a denial of justice ……To no one will we deny or delay right or justice’. All through the years’ men have protested at the law’s delay and counted it as a grievous wrong, hard to bear. Shakespeare ranks it among the whips and scorns of time (Hamlet, Act 3, Sc 1). Dickens tells how it exhausts finances, patience, courage, hope (Bleak House, C1). To put right this wrong, we will in this Court do all in our power to enforce expedition: and, if need be, we will strike out actions when there has been excessive delay. This is a stern measure; but it is within the inherent jurisdiction of the court, and the rules of court expressly permit it. It is the only effective sanction that they contain.”

35. It is not in dispute that the dismissal of a suit is a draconian measure and that a court of justice will not ordinarily shut out a litigant from the seat of justice.

36. In this case, there is evidence that the 2nd defendant, who was the alleged owner of the motor vehicle involved in the accident, was deceased. That left the driver of the said vehicle as the sole defendant. There is also reference to proceedings in a succession cause that were being awaited by the parties. I am of the view that these circumstances contributed to the delay in prosecuting the case. The Applicants have not disclosed what the current position is regarding that succession cause. They are now effectively trying to take advantage of the situation, occasioned by the death of the 2nd Defendant. If he is deceased, who are the advocates now acting for?

37. I do not see any prejudice likely to be suffered by the applicants, should the suit be allowed to proceed. If there is any then the same can be remedied by way of costs.

38. I am of the view that the ends of justice will be met if what is left of this suit is to be determined on merits. Appropriate time lines can be imposed within which to prosecute the same.

39. The application is therefore disallowed but the costs shall be borne by the Respondents.

40. In the circumstances, I will direct that the plaintiffs/respondents take steps to list the matter for trial in the next 6 months, failing which this suit risks dismissal.

41. It is so ordered.

DATED, SIGNED AND DELIVERED AT NAKURU THIS 18TH DAY OF OCTOBER, 2023. H. M. NYAGA,JUDGE.