[2017] KEHC 9750 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

COMMERCIAL AND TAX DIVISION

CIVIL CASE NO. 184 OF 2010

LACHLAN KENYA LIMITED..........................................…PLAINTIFF

VERSUS

KENYA COMMERCIAL BANK STAFF PENSION

FUND REGISTERED TRUSTEES....................................DEFENDANT

RULING

[1]Before the Court for determination is the Defendant's Notice of Motion dated 11 November 2015. The application was however filed herein only on7 February 2017. Apparently, this state of affairs was brought about by the fact that the court file went missing in the Registry and was not available until about 3 February 2017. The application is expressed to be brought under Section 1A, 1B and 3A of the Civil Procedure Act, Chapter 21 of the Laws of Kenya, and Order 17 Rule 2(3)of the Civil Procedure Rules, 2010 for orders that the Plaintiff's suit against the Defendant be dismissed for want of prosecution; and that the Defendant be awarded the costs of the application and the suit.

[2]That Notice of Motion is supported by the affidavit of Mutimu Lukas Kang'atta,Advocate, annexed thereto, and on the following grounds:

[a] That the last time the suit was active was on 16 July 2014, when the Court dismissed the Defendant's Notice of Motion dated 7 February 2012with costs to the Plaintiff, which is more than one year ago;

[b] That since then, the Plaintiff has not bothered to have the suit listed for hearing, nor has it taken any step of any kind towards having the suit set down for hearing, and no application has been made or any step taken in this suit for a period of more than one year;

[c] That it would appear that the Plaintiff is no longer interested in prosecuting the suit, especially in view of the fact that the same has been overtaken by events; the property the subject of the suit having been transferred to a third party, a fact that is well within the knowledge of the Plaintiff; and the Plaintiff having also vacated the suit property.

[3] In the Supporting Affidavit, sworn on 11 December 2015 by Mr. Kang'atta, it was averred that the suit was filed herein on 24 March 2010; and that also filed contemporaneously with the Plaint, was a Chamber Summons application, dated 23 March 2010. The Plaintiff had sought orders that the Defendants be restrained by way of a temporary injunction, from terminating its lease; and from selling the suit property, being LR No. 209/11930, Nairobi, to any other person without giving the Plaintiff the first option to purchase. It was further averred that thereafter, the Plaintiff filed a Chamber application dated 1 September 2010 seeking for the joinder of Surgilinks Limited as the 2nd Defendant, but that the application was marked as withdrawn by consent on 24 February 2011.

[4] Thereafter, on 9 September 2010, the Defendants filed a Notice of Motion seeking to have the suit herein struck out, but the same was dismissed with costs on 16 July 2014. Thus, it was the contention of the Defendant that, since 16 July 2014, the Plaintiff has not had the suit set down for hearing, nor has the Plaintiff taken any step whatsoever towards having the suit otherwise prosecuted, over one year later. The Defendant accordingly postulated that the Plaintiff is no longer interested in prosecuting the suit; adding that, in any case, the same has been overtaken by events, the property the subject matter of the suit having been sold and transferred to a third party; a fact well within the knowledge of the Plaintiff. Mr. Kang'atta further averred that the Plaintiff has since, in acknowledgement of the change in circumstances, vacated the suit property. Accordingly, it was the contention of the Defendant that the remedies that the Plaintiff was seeking having been overtaken by events, the interest of justice would not be served by the continued pendency of this suit.

[5] In response to the application, the Plaintiff filed Grounds of Opposition dated 10 March 2017, contending that the application is as incompetent, misconceived and fatally defective as it is mischievous. It was the contention of the Plaintiff that it is interested in prosecuting the suit as it is still in occupation of the suit property; and that it stands to suffer irreparable damage if this suit is dismissed.

[6] In the foregoing premises, directions were given on 13 March 2017 for the parties to file and exchange their written submissions herein in respect of the application. Whereas the Plaintiff has so far not filed any written submissions, the Defendant filed its written submissions herein on 24 May 2017. It was the submission of the Defendant that the Plaintiff had failed to account for the fact that this suit has been dormant since 16 July 2014 when the Court delivered a Ruling on the Defendant's Notice of Motion dated 7 July 2010; and that the reason the Plaintiff had not filed a Replying Affidavit, and had not made reference to any specific applications that have been active until recently as alleged in the Grounds of Opposition, was because the Plaintiff knew that it was in default. The Court was accordingly urged to find no merit in the Plaintiff's Grounds of Opposition dated 10 March 2017 and to allow the Defendant's Notice of Motion dated 11 November 2015.

[7] Order 17 Rule 2of theCivil Procedure Rules, does provide 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."

[8] In the case of Ivita vs Kyumbu [1975] eKLRthe Court stressed the significance of considering each case on the basis of its own facts, even as the Court seeks to be guided by the aforementioned principles. The Court stated that:

"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."

[9]A perusal of the court record confirms that, for the purposes of the instant application, the last step taken herein was the Court's Ruling dated 16 July 2014, whereby the Defendant's Notice of Motion dated 7 February 2013, for the striking out of the suit, was dismissed with costs to the Plaintiff. Having opted to file Grounds of Objection, it is manifest that no factual explanation at all was offered by the Plaintiff as to why the matter has been dormant since 2014.

[10] In addition to the foregoing, the Defendant averred that the situation on the ground has since changed; in that the suit property has since been disposed of by way of sale to a third party. The record confirms that, as far back as 1 September 2010 when the Plaintiff moved the Court for the joinder of Surgilinks Limited as a Defendant herein, it acknowledged that it had, subsequent to the filing of the suit, learnt that the Defendant had sold the suit property to Surgilinks Limited. Clearly therefore, it would appear that the Plaintiff has lost interest in the case.

[11] In the light of the foregoing, and there being no justification for the continued pendency of this suit, I would allow the Defendant's Notice of Motion dated 11 November 2015 and grant orders for the dismissal of this suit with costs for want of prosecution

It is so ordered.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 3RD DAY OF NOVEMBER, 2017

OLGA SEWE

JUDGE