[2005] KEHC 1503 (KLR)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI COMMERCIAL DIVISION – MILIMANI

Civil Case 748 of 2001

LEE WAIGWA WARUINGI ………………………………………… PLAINTIFF

VERSUS

HOUSING FINANCE CO. OF KENYA LIMTED …………………………………………………. DEFENDANT

RULING

This is an Application by the Defendant for one substantive prayer that the Plaintiff’s suit be dismissed for want of prosecution. The Application is brought under Order XVI, Rule 5, Order L. rule 1 of the Civil Procedure Rules and all other enabling provisions of the Law. The Application is based on one primary ground that the Plaintiff has failed to prosecute the suit since 19. 1.2004 without reasonable or just cause. The application is opposed and there is a replying affidavit sworn by the Plaintiff.

The Application was canvassed before me on 12. 7.2005 by Mr. Mutahi, Learned Counsel for the Defendant and Mr. Obura Learned Counsel for the Plaintiff. The gist of the Defendant’s Application is that the parties had been discussing settlement of the matter but negotiations broke down on 19. 4.2004 and since then the Plaintiff has not taken any steps to prosecute the case. In the premises the suit should be dismissed for want of prosecution

. Mr. Obura, Learned Counsel for the Plaintiff in response to the submissions made on behalf of the Defendant on his part argued that the Defendant had not shown that the Plaintiff was guilty of inordinate and inexcusable delay. Explaining the delay, counsel submitted that the parties had continued negotiations and indeed correspondence had been exchanged as late as March 2005. Counsel referred me to annexture “LWW 3” which comprise a bundle of such letters exchanged between the Advocates for the parties herein. In this bundle there is a letter dated 1st March 2005 from the Defendant’s Advocates addressed to the Plaintiff’s advocate seeking the Plaintiff’s proposals to enable the Defendant’s advocates take instructions on the same. In the premises it was the Plaintiff’s view that the Application to dismiss her suit was not made in good faith and should be dismissed with costs.

Having considered the arguments advanced before me, I take the following view of the matter. The Application has been brought under the provisions of Order XVI rule 5(d) of the Civil Procedure Rules which reads:

“5. If within three months after –

(a) The adjournment of the suit generally, the Plaintiff or the Court of its own motion on notice to the parties does not set down the suit for hearing, the Defendant may either set the suit for hearing or apply for its dismissal.

This rule gives a discretionary power to dismiss a suit for want of prosecution.

The record shows that on 19. .2004 this case came up for mention with a view to recording a settlement. But as no settlement had been reached the suit was stood over generally. On 4th February, 2005 counsel for the Defendant filed the present Application and had it listed for hearing on 6. 4.2005. On this date the present Advocates appeared before Kasango J. and informed her that a settlement would possibly be recorded on 22. 4.2005.

Come this latter date the same Advocates appeared before Waweru J. and told the Learned Judge that negotiations were in progress and requested for a mention on 17. 5.2005 with a view to recording a settlement.

On 17. 5.05 the matter was mentioned before Waweru J. and the advocates for the parties informed the Learned Judge that settlement had not been reached and sought a hearing date for the Application at hand. In the meantime the Plaintiff’s Counsel had on 3rd March 2005 taken 25. 10. 2005 for hearing of the suit.

The above record speaks for itself. It vindicates the Plaintiff. In my view she cannot at this stage be accused of delaying the prosecution of this case which in any event she has listed for hearing on 25. 10. 2005.

In Ivita –v- Kyumba [1984] KLR 441,Cheson J. held inte alia.

“3. The test to be applied by the Courts in an Application for dismissal of a suit for want of prosecution is whether the delay is prolonged and inexcusable and if it is whether justice can be done despite the delay. Thus even if the delay is prolonged if the Court is satisfied with the Plaintiff’s excuse for the delay and that justice can still be done to the parties the action will not be dismissed but it will be ordered that it be set down for hearing at the earliest time. It is a matter in the discretion of the Court.”

The above decision has been approved by the Court of Appeal. For instance in the case of Salkas Contractors Ltd –v- Kenya Petroleum Refineries Ltd: C.A. No. 250 of 2003the said decision was cited with approval by the Learned Judges of appeal.

In the later case their Lordships also cited the case of Allen –v- Sir Alfred Mcalpine & Sons Ltd [1968] 1 ALL E.R.543 in which Salmon L.J. stated as follows:-

“A Defendant may apply to have an action dismissed for want of prosecution either (a) because of the Plaintiff’s failure to comply with the Rules of the Superior Court or (b) under the Court’s inherent jurisdiction.

In my view it matters not whether the Application is made under (a) or (b) above the same principles apply. The principles are as follows:- For the Defendant to succeed in an Application for dismissal for want of prosecution, he must show:-

(1). That there has been inordinate delay. It would be highly undesirable and indeed impossible to attempt to lay down a tariff so many years or more on one side of the line and a lesser period on the other. What is or is not inordinate delay must depend on the facts of each particular case. These vary infinitely from case to case but it should not be too difficult to recognize inordinate delay when it occurs.

(ii) That this inordinate delay is inexcusable. As a rule until a credible excuse is made out the natural inference would be that it is inexcusable.

(iii) That the Defendants are likely to be seriously prejudiced by the delay.

This may be prejudice at the trial of issues between themselves and the Plaintiff or between themselves and third parties or between each other.

In addition to any inference that may properly be drawn from the delay itself prejudice, can sometimes be directly proved. As a rule the longer the delay the greater the likelihood of serious prejudice at the trial.”

Now looking at this matter in that perspective and in the light of the fact that the parties have been negotiating and that the case has in any event been fixed for hearing, it cannot be said that this is an appropriate case for invocation of the Court’s powers to dismiss the suit for want of prosecution.

In those premises I hold that the Plaintiff is not guilty of delay let alone inordinate delay. The Defendants application dated 10th September, 2004 and filed on 4th February, 2005 has no merit and is dismissed with costs.

DATED AND DELIVERED AT NAIROBI THIS 28TH DAY OF JULY 2005.

F. AZANGALALA

JUDGE

Read in the presence of:-