[2017] KEHC 1482 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYAAT NAIROBI

CIVIL CASE NO. 414 OF 2011

HON. MBUVI GIDEON KIOKO........................................PLAINTIFF

VERSUS

DAVID OCHAMI.....................................................1ST DEFENDANT

BEAUTTAH OMANGA..........................................2ND DEFENDANT

WILLIS OKETCH...................................................3RD DEFENDANT

THE STANDARD GROUP LIMITED......................4TH DEFENDANT

NATION MEDIA GROUP........................................5TH DEFENDANT

RADIO AFRICA LIMITED......................................6TH DEFENDANT

RULING

This matter came up in court on the 3/11/2017 for Notice to show cause why it should not be dismissed for want of prosecution. The said Notice had been issued by the court under the provisions of Order 17 Rule 2 of the Civil Procedure Rules.

Counsel for the plaintiff told the court that the reason why the matter has not been prosecuted is because the 1st – 4th defendants filed a notice of preliminary objection dated the 23rd of November 2011 challenging the jurisdiction of the court which preliminary objection has been pending. The court was also told that the plaintiff has been waiting for determination of another matter which is pending before the court of Appeal.

On her part, Counsel for the 5th defendant submitted that there is no order of stay of proceedings awaiting the outcome of the matter in the court of Appeal. She argued that a preliminary objection does not stop a party from proceeding with the matter. She urged the court to dismiss the matter as no sufficient cause has been shown.

Both Counsels for the 4th and 6th defendants associated themselves with the submissions made by the Counsel for the 5th defendant and supported the dismissal of the suit.

The court has considered the submissions made by the learned Counsels for the respective parties. The record shows that the suit herein was filed on the 27th September, 2011. A notice of preliminary objection was filed on the 24/11/2011 by the Counsels for the 1st, 2nd 3rd and 4th defendants on the jurisdiction of the court to hear the suit by virtue of Article 34 (2) of the constitution.

I note from the record that, when the parties appeared before justice Onyancha on the 15th October, 2014, the Honourable Judge was told that there is an appeal pending before the court of Appeal raising similar issues as the suit herein.

All the parties in those suits were directed to make submissions to enable the court make a ruling which would affect all the suits. On the 24/2/2015, the Counsels appearing in the different matters appeared in court and they were ordered to take a hearing date at the registry. That was the last time that the matter was in court.

Since then, it is now over two years and no action has been taken. I concur with the submissions by the learned Counsels for the defendants that the suits have neither been Consolidated nor stayed pending the hearing and determination of the matter pending before the court of Appeal though the matters are said to be related.

In the circumstances, the prudent thing to do would be to apply for stay of proceedings in this matter pending the hearing of matter before the court of Appeal.

It is ordered that an application for stay of proceedings be filed within 21 days failing which the matter shall stand dismissed for want of prosecution.

Dated, Signed and Delivered at Nairobi this 10thDay of November, 2017.

……………….

L. NJUGUNA

JUDGE

In the Presence of

…………………………. For the Plaintiff

…………………………. For the 1st Defendant

…………………………. For the 2nd Defendant

…………………………. For the 3rd Defendant

…………………………. For the 4th Defendant

…………………………. For the 5th Defendant

…………………………. For the 6th Defendant