[2017] KEHC 9017 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL DIVISION

HIGH COURT CIVIL CASE NO. 843 OF 2005

LIFECARE INTERNATIONAL LIMITED.........................PLAINTIFF/RESPONDENT

VERSUS

ZEENAT MEGHJI.......................................................1STDEFENDANT/APPLICANT

ANDREW GRIMES (Also known as ANDY GRIMES)..............2ND DEFENDANT

RULING

1. The notice of motion dated 5th October, 2016 seeks orders that:

1) That the Plaintiff’s suit be dismissed for want of prosecution.

2) That costs of this application be provided for.

2. The application is premised on the grounds stated on the face of the application and is supported by the affidavit of the Applicant, Zeenat Meghji. It is stated that the Respondent filed this suit on 8th July, 2005 but has failed to take steps to prosecute the same for a period of over eight years. It is further stated that the delay is inexcusable and prejudicial to the Applicant’s case. That in the circumstances the suit is an abuse of court and ought to be dismissed with costs.

3. The application is opposed. It is stated in the replying affidavit that parties attempted an out of court settlement during the year 2010. That subsequently the Plaintiff had the matter fixed for hearing on 27th June, 2012 but the case could not proceed due to shortage of judges. That thereafter the 2nd defendant’s advocates filed an application to cease acting in the matter which application was heard on 9th March, 2015. That the Plaintiff filed it’s witness statements and bundle of documents in readiness for the trial but the Defendants have not filed theirs. That the matter was given dates for directions two times in year 2016 but was not cause listed. According to the Respondent, it has always been keen to prosecute this case.

4. Order 17 (2) Civil Procedure Rules provides for dismissal of suit’s as follows:

“ (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.”

5. The principles governing the dismissal of a suit for want of prosecution are that delay must be inordinate, the inordinate delay is in-excusable and the Defendant is likely to be prejudiced. As stated in the case of Ivita vs Kyumbu [1984] KLR 441:

“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 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 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.”

6. In the case at hand, the instant application was filed on 10th October, 2016. The last activity in the file before the said date was 21st November, 2016 when the suit was given a mention date on 26th January, 2017 which was overtaken by events as the instant application had already been fixed for hearing. Prior to the said date the Plaintiff had fixed the suit for mention three other times in the year 2016. Clearly the case does not qualify for dismissal as provided for by the law.

7. It is also noted that the Plaintiff’s witness statement and bundle of documents were filed on 7th September, 2016. The Defendants are yet to file theirs. Part of the delay in this case has been occasioned by the application by counsel for the 2nd Defendant to cease acting.

8. With foregoing, this court’s view is that the interests of justice would be served by expediting the hearing of this suit. The application is dismissed with costs in cause. The parties to comply with pre-trial procedures. Case to be given a date for directions in the registry on priority basis.

Date, signed and delivered at Nairobi this 13th day of July, 2017

B. THURANIRA JADEN

JUDGE