[2022] KEHC 16456 (KLR)

Kimani v Golden Homes Limited & 2 others (Commercial Case 438 of 2010) [2022] KEHC 16456 (KLR) (Commercial and Tax) (7 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16456 (KLR)

Republic of Kenya

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

Commercial and Tax

Commercial Case 438 of 2010

DO Chepkwony, J

December 7, 2022

Between

Peter Mwangi Kimani

Plaintiff

and

Golden Homes Limited

1st Defendant

Francis John Wanyange

2nd Defendant

DR. Restrat Hagos

3rd Defendant

Ruling

1. Before this court for determination is a Notice to Show Cause why the Plaintiff’s suit should not be dismissed for want of prosecution.

2. In response to the said Notice to Show Cause, the Plainitff filed a Replying Affidavit sworn by Peter Kimani on December 7, 2021 and stated that he received a Notice to Show Cause for want of prosecution from the courts through his former advocates M/S Soita and Saende Advocates. That, he then appointed the Firm of M/S Shilunya Abutika & Associates to take over the case and file a Notice of Change of Advocates. He has stated that there are a number of reasons why this case has been dormant since 2011. His explanation is that when the matter was certified ready for hearing in court, the defendants proposed that they first try an out of court settlement through arbitration and if the same fails, then they could come back to court. That vide a letter dated November 11, 2011, the Defendants wrote to the Plaintiff’s former advocate with a suggestion of an arbitrator and which proposal the Plaintiff agreed. He went on to state that they kept on setting dates for the arbitration meeting but the 2nd Defendant had one excuse or the other as to why they were not ready to proceed with the arbitration. And in the year 2012, after numerous frustrations, they invited the Firm of Macharia Nderitu for the 2nd Defendant to choose a date that is convenient for them for the arbitration but the Plaintiff’s documents were received under protest with the firm stating that they were no longer acting for the 2nd Defendant which forced the Plaintiff to embark on tracing the 2nd Defendant for purposes of service.

3. According to the deponent, the 1st and 3rd Defendants were equally served but there were no squabbles but in tracing the 2nd Defendant, the Plaintiff was met with challenges as the 2nd Defendant had instructed his employees not to allow him into his premises which acted as both an office and residential place. However, when the Plaintiff finally managed to serve the documents in 2016, the 2nd Defendant still did not show up for the arbitration. The Plaintiff deposes that after the arbitration process failed to take off in 2019, he decided to invite the 2nd Defendant for fixing a date for hearing in the High Court only to learn that he had passed on. The Plaintiff then decided to change advocates to enable him incorporate the estate of the 2nd Defendant as he had noted the delay and laxity by his former advocates. It is the Plaintiff’s contention that the foregoing reasons caused the delay in prosecuting the case but insists that he is still desirous of prosecuting the same as he has a valid case to be determined by the courts.

4. The 2nd Defendant filed a Supporting Affidavit sworn by Catherine Wairimu Wanyange sworn on September 30, 2022 and stated that although she was brought into the suit quite late, she can decipher that there has been inordinate delay in finalizing this matter. Further, that despite the alleged events relating to the attempt to refer the matter to arbitration, there is still no sufficient explanation for not prosecuting this suit. It is her prayer that the suit be dismissed.

5. On September 20, 2022, parties were directed to canvass the Notice to Show Cause by way of written submissions which only counsel for the Plaintiff confirmed having filed.

Determination 6. Having considered the affidavits filed in support and in opposition of the

7. Notice to Show Cause for want of prosecution issued in this matter, I find the issue for determination being whether the Plaintiff’s suit filed vide a Plaint dated June 25, 2010 should be dismissed.

8. To determine the said issue, reliance if placed on the case of Ivita – vs - Kyumbu [1984] KLR 441 the Court laid down principles to be considered in issuance of an order of dismissal of suit for want of prosecution. The court 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 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'.

9. I have perused the record of proceedings pursuant to the Plaintiff’s explanation to what transpired after the suit was filed. The record confirms that parties had been referred to arbitration in this matter and it is clear the 2nd Defendant was not cooperative, so that the Plaintiff is being blamed for the delay in having the matter prosecuted was largely contributed to by the 2nd Defendant who kept failing to attend the arbitration proceedings and evaded service. I therefore find any prejudice that will be suffered by the 2nd Defendant if this suit is allowed to proceed to hearing. The Plaintiff has satisfactorily explained the efforts he made in having the matter prosecuted and the same is confirmed from the record. For this reason, I am inclined to be guided by the court’s decision in the case ofNaftali Opondo Onyango vs National Bank of Kenya Ltd [2005] eKLR, where it was noted that a court should be slow to dismiss a suit for want of prosecution if it is satisfied that the suit can proceed without further delay. It stated as follows: -'However, in deciding whether or not to dismiss a suit under rule 6 it is my view that a Court will be slow to make an order if it is satisfied that the hearing of the suit can proceed without further delay, that the Defendant will suffer no hardship and that there has been no flagrant and culpable inactivity on the part of the Plaintiff.'

10. From the foregoing, I believe the Plaintiff was interested in having the matter heard and determined save for the 2nd Defendant’s conduct and hence, despite the delay in having the matter prosecuted justice can still be served for all the parties. 11. I therefore set aside the Notice to Show Cause and order that the suit be and is hereby allowed to proceed to full hearing on condition that;-

a.The suit is set down for hearing within sixty (60 days from the date hereof.b.Failure to comply with condition (c) above, the suit to stand dismissed.c.Costs shall be in the cause.It is so ordered.

RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT NAIROBI THIS 7TH DAY OF DECEMBER, 2022. D. O. CHEPKWONYJUDGEIn the presence of:M/S Abutika counsel for PlaintiffNo appearance for and by RespondentCourt Assistant - Sakina