[2022] KEHC 3087 (KLR)

Kengas Link Limited v Time Line Construction Co. Limited & 3 others (Civil Suit 149 of 2013) [2022] KEHC 3087 (KLR) (Commercial and Tax) (17 June 2022) (Ruling)

Neutral citation: [2022] KEHC 3087 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Commercial and Tax

Civil Suit 149 of 2013

DO Chepkwony, J

June 17, 2022

Between

Kengas Link Limited

Plaintiff

and

Time Line Construction Co. Limited

1st Defendant

Grace Mutinda Maingi

2nd Defendant

Standard Chartered Bank

3rd Defendant

Chief Land Registrar

4th Defendant

Ruling

1. This matter is coming up for Ruling on a Notice to Show Cause why the suit should not be dismissed for want of prosecution. The said notice was issued and served upon the parties by the Deputy Registrar of this Honourable Court.

2. Before I proceed further, it is proper to lay down a brief background of this matter.

3. The Plaintiff filed this suit vide a Plaint dated 16th April, 2013. On 6th May, 2010, the Plaintiff entered into an agreement with the 1st Defendant on one part and consented to by the 2nd Defendant on the other part. The terms of the agreement provided that the Plaintiff would advance the amount of Kshs.3,000,000/= (herein referred to as the “Investment Amount”) to the 1st Defendant primarily to enable the 1st Defendant to construct a hospital extension in Makindu and a Health Centre in Kibwezi. The “Investment Amount” was to be repaid within 90 days from the date the agreement took effect, being 6th May, 2010. It is alleged that the 1st Defendant breached the terms of the agreement thus prompting the filing of this suit.

4. In response, the 3rd Defendant to the Plaint filed a statement of defense dated 7th June, 2013.

5. On 12th May, 2022, this matter came up for the hearing of a Notice to show cause as to why it should not be dismissed for want of prosecution. Both parties made oral submissions in respect to the Notice to show cause.

Plaintiff’s submissions 6. In his oral submissions, counsel for the Plaintiff argued that they filed an affidavit in response to the Notice to Show Cause sworn on 28th March, 2022 by Kassim Farrah the Director of the Plaintiff.

7. Based on the averments in the affidavit, the Plaintiff averred that it instructed the Firm of Sagana Biriq & Co. Advocates to file a Plaint on an issue relating to breach of an agreement. The same was filed on 18th April, 2013.

8. Consequently, the 1st and 2nd Defendants filed an application seeking to have the matter referred to arbitration which application was dismissed by this Court.

9. Counsel submitted that following the dismissal of the application, the Plaintiff complied with Order 11 of the Civil Procedure Rules to have the matter set down for hearing. This is clearly shown by the bundle of documents annexed to the affidavit. There was an invitation to fix the matter for a hearing dated 27th January, 2015 but the file could not be traced.

10. The court wrote to the Firm of Sagana Biriq & Co. Advocates on 11th March, 2015 informing them that the file had been traced and was available in the registry. Counsel for the Plaintiff exhibited several invitations to have the matter fixed for hearing and the latest one is dated 14th January, 2020.

11. Counsel argued that the delay in having the matter set down for hearing was not deliberate. He attributed the delay in the Covid-19 pandemic and the migration from physical filing to online filing which was not smooth immediately and that this caused a further delay in having the matter fixed for hearing. He averred that the Plaintiff indicated that it isdesirous of having the matter prosecuted and will be glad to have the earliest date. Counsel urged the court to extend its discretion and allow the Plaintiff to prosecute the matter for the reason that they stand to suffer prejudice if the matter is dismissed.

12. Finally, counsel submitted that the Plaintiff is willing to abide by any condition by the Court in allowing the Plaintiff to prosecute the matter.

3rd Defendant’s Submissions 13. Counsel for the 3rd Defendant submitted that since the Notice to show cause emanated from the court they leave it to the court to decide. However, they are of the view that if the court is inclined to open up the case, she sought leave of 30 days to enable the 3rd Defendant file and serve a list of documents.

Analysis and Determination 14. I have considered the pleadings in this matter and the response to the Notice to Show Cause alongside the oral submissions by both Counsel for the parties. The issue arising for determination before this court is whether or not this matter is liable for dismissal for want of prosecution.

15. The guiding law on dismissal of suits for want of prosecution is provided for under Order 17 Rule 2 of the Civil Procedure Rules, 2010which provides that: -

“(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 orders 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.”

16. Besides the provision of Order 17 rule 2 of the Civil Procedure Rules, the court laid down the criteria to be followed in considering the issue of dismissing a suit for want of prosecution in the case of Ivita v Kyumbu(1984) KLR 441 where Chesoni J as he then was stated;“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 the 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 wanting and evidence is weak due to the disappearance of human memory resulting from lapse of time. The Defendant must however, satisfy the court that he 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 the 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”.

17. My understanding of the aforementioned authority is that a Court may dismiss a suit for want of prosecution if there is prolonged delay which cannot be explained. Further the provisions of Order 17 Rule 2 allows this court to suo motto to dismiss a suit for want of prosecution.

18. The question of what amounts to inordinate delay was discussed in the case of Mwangi S. Kimenyi v Attorney General &another (2014) eKLR, where the court held that;“There is no precise measure of what amounts to inordinate delay. Inordinate delay will differ from case to case depending on the circumstances of each case; the subject matter of the case; the nature of the case, the explanation given for the delay; and so on and so forth” nevertheless, inordinate delay should not be difficult to ascertain once it occurs, the litmus test being that it should be an amount of delay which leads the court to an inescapable conclusion that it is inordinate and therefore, inexcusable....”

19. In the instant case before court, the Plaintiff has tried to explain the delay in setting down this suit for hearing and infact filed an affidavit explaining its predicament for the delay. The Plaintiff has alleged that the delay in having the matter fixed for hearing, was among other reasons stated above, caused by the Covid-19 and the shifting from physical filing to online filing.

20. Upon perusal of the court record, I note that there are several letters dating back from 2013 by the Plaintiff inviting the other parties to the suit to appear in court to fix a hearing date for the matter. I wish to also point out that from the proceedings, a date was taken on 23rd January, 2020 for the matter to come up on 20th Februar, 2020 but it appears the matter was not taken to court as there are no proceedings for that date. I must also state that there is no affidavit on record as alleged by the Plaintiff. Be that as it may, I will proceed to consider the application based on the submissions by parties.

21. The Constitution of Kenya under Article 50(1) provides for the right of a fair hearing and it states that;“Every person has the right to have any dispute that can be resolved by application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body.”

22. What I gather from the said provision is that dismissing a suit without having it heard on merits is curtailing the right to a fair hearing envisioned in our Constitution.

23. The same position was echoed by the Court of Appeal in the case of Richard Ncharpi Leiyagu v Independent Electoral Boundaries Commission & 2 others [2013] eKLR, where the Court of Appeal stated that:“The right to a hearing has always been a well-protected right in our Constitution and is also the cornerstone of the rule of law. This is why even if the courts have inherent jurisdiction to dismiss suits, this should be done in circumstances that protect the integrity of the court process from abuse that would amount to injustice and at the end of the day there should be proportionality.”

24. Generally speaking, dismissal of suits is a draconian measure which should be exercised sparingly and judiciously depending on the evidence placed before Court otherwise it can be a weapon for causing injustice to a party seeking justice. This is the position taken by the court in the case of John Nahashon Mwangi v Kenya Finance Bank Limited (in Liquidation)[2015] eKLR where the court held that;“Courts should sparingly dismiss suits for want of prosecution for dismissal is a draconian act which drives away the Plaintiff in an arbitrary manner from the seat of judgment. Such acts are comparable only to the proverbial ‘Sword of the Damocles’ which should only draw blood where it is absolutely necessary.”

25. I must also state that the Notice to Show why Cause this suit should not be dismissed for want of prosecution is not on the court record neither is there an affidavit of service exhibited as a proof of service on all the other parties to this suit.

26. Additionally, the Hon. Chief Justice issued Practice Directions on standardization of Practice & Procedures in the High Court 2021 which came into force on 11th January 2022. The Practice Directions clearly provide guidance on issuance of dates among other procedures in the High states that;“24-Issuance of datesa.All filed matters must have dates.b.Priority hearing dates shall be given to cases according to age, urgency and nature as may be practicably possible.c.Deputy Registrars may on the direction of the Judge issue hearing dates on applications which are not under certificate of urgency.d.Hearing Dates for the main suit shall be given by the Judge.e.Matters without hearing dates shall be listed for mention before a judge to give a hearing date.f.Mentions before a Judge shall only be for the following purposes-i.For compliance with the courts directionsii.For fixing of hearing datesiii.For directionsiv.To take a ruling/judgment dates upon filing submissions by partiesv.All other mentions shall at first instance be before the Deputy Registrar.”

27. It is my humble view therefore that the Deputy Registrar ought to have been guided by the above Practice directions before listing down this matter for Notice to show cause why this suit should not be dismissed for want of prosecution.

28. Based on the aforementioned reasons, I do agree with the Plaintiff’s explanation regarding the delay in having this matter heard and determined which in my view is excusable. The Plaintiff has already complied with provisions of Order 11 of the Civil Procedure Rules, 2010, hence it is only fair and just that it is given the last opportunity by this Court to prosecute its case to finality. I will therefore exercise my discretion in favor of Plaintiff and decline to dismiss this matter for want of prosecution.

29. The upshot of the foregoing is that the Notice to Show Cause is hereby set aside with directions that:-a.The 3rd Defendant be and is hereby granted 30 days leave to file the necessary documents.b.Plaintiff be and is hereby granted 45 days from the date of this Ruling to set down this suit for pre-trial directions.c.Failure to comply with the above directions by the Plaintiff, the suit shall stand dismissed.d.Each party to bear their own costs.

It is so ordered .

DELIVERED DATED AND SIGNED IN NAIROBI THIS 17TH DAY OF JUNE , 2022. D. O. CHEPKWONYJUDGE