[2023] KEHC 26448 (KLR)

Miguna v Standard Group Ltd & 12 others (Civil Suit 124 of 2017) [2023] KEHC 26448 (KLR) (Civ) (8 December 2023) (Ruling)

Neutral citation: [2023] KEHC 26448 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Suit 124 of 2017

CW Meoli, J

December 8, 2023

Between

Miguna Miguna

Plaintiff

and

The Standard Group Ltd

1st Defendant

The Standard Ltd

2nd Defendant

The Nairobian

3rd Defendant

Ktn

4th Defendant

Joseph Odindo

5th Defendant

Kipkoech Tanui

6th Defendant

Charles Otieno

7th Defendant

David Odongo

8th Defendant

Ted Malanda

9th Defendant

Kamau Mutunga

10th Defendant

Mwaura Samora

11th Defendant

Nicholas Kibet

12th Defendant

'The Nairobian Reporter' or 'John Doe'

13th Defendant

Ruling

1. The Notice of Motion (the Motion) dated 16th January, 2023 was brought by Miguna Miguna (hereafter the Applicant) seeking to set aside the order issued on 4th November, 2021 dismissing the instant suit for want of prosecution, and consequently, the reinstatement of the suit for hearing.

2. The Motion is expressed to be brought under Articles 48, 50 and 159(2) of the Constitution, Sections 1A, 1B & 3A of the Civil Procedure Act (CPA) and Order 17, Rule 6 and Order 51, Rule 1 of the Civil Procedure Rules (CPR) and is premised on the grounds on its face, as amplified in the supporting affidavit sworn by the Applicant’s advocate, David Musyoka. The advocate stated that the delay in prosecuting the suit was occasioned by factors beyond the control of the Applicant, namely, that the Applicant was not only forcibly removed out of the country and this court’s jurisdiction on 6th February, 2018 by the Ministry of Interior and National Co-ordination, but was also subsequently denied entry into the country on several occasions, despite the existence of a valid court order declaring his removal unconstitutional and illegal.

3. That the Applicant was only granted entry and access into the country after a new government came to power following the August 2022 General Elections, by which time the suit had already been dismissed. Counsel deposed that the Applicant is keen to prosecute the suit and hence it would be in the interest of justice for the dismissal order to be reviewed and/or set aside, and for the suit to be reinstated.

4. The Standard Group Ltd, the Standard Ltd, the Nairobian Today Aka the Nairobian, Kenya Television Network (KTN), Joseph Odindo, Kipkoech Tanui, Charles Otieno, David Odongo, Ted Malanda, Kamau Mutunga, Mwaura Samora, Richard Kibet or Nicholas Kibet and “The Nairobian Reporter” or “John Doe” (hereafter the 1st to 13th Respondents) resisted the Motion by way of the replying affidavit sworn by the 1st Respondent’s Company Secretary, Millicent Ng’etich, on 2nd May, 2023.

5. The affidavit is to the effect that there was inordinate delay of over five (5) years since the inception of the suit in prosecuting it. She dismisses as untenable the reasons given for the delay pointing out that court sessions are now conducted virtually the Applicant’s absence from the court’s jurisdiction is of no moment. Further, she averred that in the present instance, the delay is likely to prejudice the Respondents due to difficulty in procuring documentation and witnesses necessary for mounting their defence. It was further averred that the Applicant has been indolent and the court ought not to exercise its discretion in his favour.

6. The Motion was canvassed by way of written submissions. In support of the Motion, counsel for the Applicant anchored his submissions on the decisions rendered in Rose Wanjiru Kamau v Tabitha N Kamau & 3 others [2014] eKLR and Lochab Bros Ltd v Peter Karuma T/A Lumumba, Lumumba Advocates (2003) eKLR on the discretionary power of the court in setting aside a judgment and/or order, with the aim of doing justice to the parties.

7. Counsel reiterated the affidavit material to the effect that the delay in prosecuting the suit was unintentional and excusable and that the notice to show preceding the dismissal was not served upon the Applicant who at the time was acting in person. Hence the Applicant’s rights to be heard and consequently, his right to a fair trial were encumbered. Here citing the case of Richard Ncharpi Leiyagu v Independent Electoral Boundaries Commission & 2 others [2013] eKLR.

8. Counsel therefore urged the court to administer substantive justice by exercising its discretion in favour of the Applicant, adding that the Respondents have not tendered any credible evidence to support their assertions of likely prejudice if the dismissal order were set aside and the suit is reinstated.

9. Counsel for the Respondents while citing the decisions in Gideon Sitelu Konchella v Daima Bank Ltd [2013] eKLR and Catherine Kigasia Kivai v Ernest Ogesi Kivai & 4 others [2021] eKLR underscored the need for expeditious disposal of disputes and reiterated that the Applicant was guilty of inordinate delay. Counsel further argued the instant application has not been brought within the principles governing reinstatement of suits as the prolonged delay herein was inexcusable. He contended that the Applicant’s sojourn outside the country did not hinder his ability to prosecute his suit virtually. He stressed that the Respondents stand to suffer great inconvenience if the suit is reinstated. Consequently, the court was urged to dismiss the Motion with costs, and to uphold the dismissal order.

10. The court has considered the rival affidavit material and the contending submissions in respect of the Motion. The Motion seeks the setting aside of the dismissal order made on 16th March, 2022 and for the reinstatement of the suit. As earlier noted, the Motion was brought under Articles 48, 50 and 159(2) of the Constitution, Sections 1A, 1B & 3A of the CPA and Order 17, Rule 6 and Order 51, Rule 1 of the CPR. While Sections 1A, 1B and 3A relate to the overriding objective of the Act, Order 51, Rule 1 merely sets out the nature of application to be filed by a party where no specific provisions exist setting out such procedure. Articles 48, 50 and 159 of the Constitution relate inter alia for access to justice, the right to a fair hearing and the administration of substantive justice without undue regard to procedural technicalities, respectively.

11. The provisions of Order 17 Rule 6 of the CPR, as invoked by the Applicant has the most direct application to his motion. The court’s power to grant or refuse to set aside or vary an order, judgment or any consequential decree or order, is discretionary, wide, and unfettered. However, the discretion must be exercised judicially and justly. The rationale for the discretion to set aside as conferred on the court was spelt out in the case of Shah v Mbogo and Another [1967] E.A 116:“The discretion to set aside an ex-part judgment is intended to be exercised to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake or error but it is not designed to assist a person who has deliberately sought whether by evasion or otherwise to obstruct or delay the cause of justice.”

12. The events leading to the dismissal order issued of 4th November, 2021 are as follows. The Applicant filed the suit via the plaint dated 5th June, 2017 and amended on 13th June, 2017. The suit was grounded on the tort of defamation and several reliefs were sought against the Respondents herein. The record shows that the Respondents subsequently filed their joint statement of defence on 27th June, 2017 and after pre-trial compliances, the matter was certified ready for hearing on 18th January, 2018. The record shows that no further action took place to progress the suit, resulting in issuance of the notice to show cause (NTSC) under Order 17 Rule 2 of the CPR, on 7th October, 2021 requiring the parties to attend court on 4th November, 2021 to show cause as to why the suit should not to be dismissed for want of prosecution.

13. When the matter came up for hearing on the aforesaid date, none of the parties were in attendance, hence the suit was dismissed pursuant to the provisions of Order 17 Rule 2 (1) of the CPR. The dismissal order prompted the instant Motion.

14. The Applicant’s explanation relating to his forcible removal from the country and subsequent denial of entry between 2018 and 2022 was a matter of notoriety in the public domain. However, as asserted by the Respondents, courts migrated to online platforms around the same period and no explanation has been given for the Applicant’s failure to take advantage of the virtual access to progress his suit.

15. Regarding service of the NTSC upon the Applicant, it appears that the Applicant was acting in person/through his own law firm at all material times. It appears plausible that the Applicant being out of the country in 2021 may not have had knowledge of the NTSC served on his firm. However, the admissions by the Applicant in this regard indicate that he did not follow up on his case, at the minimum through enquiries with the registry in the hiatus of over four years. The court nevertheless having reviewed all the obtaining circumstances is prepared to accept the explanations offered by the Applicant.

16. It is true that prolonged delay could in certain cases prejudice fair trial. In Ivita v Kyumbu (1984) KLR 441 Chesoni J (as he then was) stated that: -“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.”

17. In the present case, the parties had complied with Order 11 of the CPR and the matter certified ready for hearing by 2018. Apart from asserting a general apprehension, the Respondents have not shown that the delay in this case is such that a fair trial cannot eventually be held.

18. The right to a fair hearing is guaranteed under the Constitution. In Vishva Stone Suppliers Company Limited v RSR Stone (2006) Limited (2020) eKLR the Court of Appeal though considering the right of appeal in that matter emphasized the right as follows:“Turning to the request to allow the applicant to exercise his now undoubted constitutionally underpinned right of appeal, the position is…. crystalized …. in the case of Richard Ncharpi Leiyagu vs. IEBC & 2 Others (supra); Mbaki & Others vs. Macharia & Another [2005] 2EA 206; and the Tanzanian case of Abbas Sherally & Another vs. Abdul Fazaiboy, Civil Application No. 33 of 2003; for the holding inter alia that:(i)the right to a hearing is not only constitutionally entrenched but it is also the corner stone of the Rule of law;(ii)the right to be heard is a valued right; and(iii)that the right of a party to be heard before adverse action or decision is taken against such a party is so basic that a decision which is arrived at in violation of it will be nullified, even if the same decision would have been reached had the party been heard, because, the violation is considered to be a breach of natural justice…”

19. The Applicant’s entitlement to an opportunity to be heard on his suit ought not to be peremptorily taken away. Directions could issue, and shall be made here for expeditious prosecution of the suit to obviate further delays. In the result, the court is persuaded that the justice of the matter lies in exercising its discretion in favour of the Applicant. The Notice of Motion dated 16th January, 2023 is therefore allowed. The granting of the Motion is however subject to the condition that the Applicant shall prosecute the reinstated suit to conclusion by 31st May, 2024 failing which, the suit shall stand dismissed for want of prosecution with costs to the Respondents. The costs of the Motion are awarded to the Respondents in any event.

DELIVERED AND SIGNED ELECTRONICALLY AT NAIROBI ON THIS 8TH DAY OF DECEMBER 2023. C.MEOLIJUDGEIn the presence ofFor the Applicant: Mr Aluoch holding brief for Mr OkubasuFor the Respondents: No appearanceC/A: EmilyPage | 3