[2022] KEHC 15106 (KLR)

Muchiri v Commissioner of Police & another (Civil Suit 112 of 2012) [2022] KEHC 15106 (KLR) (9 November 2022) (Ruling)

Neutral citation: [2022] KEHC 15106 (KLR)

Republic of Kenya

In the High Court at Embu

Civil Suit 112 of 2012

LW Gitari, J

November 9, 2022

Between

Jackson Kariuki Muchiri

Plaintiff

and

Commissioner of Police

1st Respondent

Attorney General

2nd Respondent

Ruling

1. The matter for determination before the court is an application dated May 19, 2022 wherein the applicant sought for orders that:i.The ex parte order of dismissal be reviewed and set aside.ii.The suit be heard anew.iii.Cost of the application be in the cause.

2. The application is premised on the grounds on its face and further supported by the affidavit of the applicant.

3. The 1st and 2nd defendants filed grounds of opposition stating that the application was made after an inordinate, insufficiently explained and inexcusable delay since the case was dismissed. In the same breadth, it was the respondent’s case that equity aids the vigilant and not the indolent and therefore, the application herein should fail. That the plaintiff’s claim to have been unwell since April 2014 was not supported by any documents to prove his claim and as such, the same was just an afterthought. Further, the respondents urged this court to dismiss the application with costs for the reason that an acquittal and/or withdrawal of a criminal charge does not constitute sufficient ground for instituting a case for malicious prosecution.

4. The applicant filed a supplementary affidavit and wherein it was deposed that the application herein has merits and that, during the illness aforesaid, it was not possible for him to fast-track the matter. The applicant further attached a treatment card dated February 14, 2017.

5. The court gave directions that the application be canvassed by way of written submissions and both parties complied with the directions on filing of submissions.

6. On the issue of delay, the respondent relied on the case of Ivita v Kyumbu [1984] eKLR. It was submitted that the order for dismissal was made on September 18, 2017 while the application herein was filed on May 19, 2022 which is almost six years down the line. That, such a delay is prolonged and inexcusable as the plaintiff alleged that he had been unwell since 2013 without producing any evidence. Reliance was placed on the case of Savings and Loans Limited v Susan Wanjiru Muritu Nairobi (Milimai) HCSS No 397 of 2022. The respondents argued that a party seeking to reinstate a suit must demonstrate good faith and should file such an application without undue delay. As such, the delay occasioned by the plaintiff/applicant in filing the application herein is inexcusable.

7. The defendants submitted that granting the orders sought herein will be prejudicial to them as the suit was filed out of time, in that, the suit was filed in the year 2012 while the judgment in the criminal case was given on March 11, 2002 and hence the suit was already time barred pursuant to section 3(1) of the Public Authorities Limitation Act. Reliance was placed on the case of Mehta v Shah (1965) EA 321. That, that notwithstanding, the applicant/plaintiff failed to provide a reasonable excuse as to why he did not prosecute the suit in that, had he been vigilant, then he would have realized that the suit had been dismissed and as such, would have taken necessary steps at the time instead of filing the application herein. In the end, it was submitted that the suit herein is already time barred and as such the orders sought herein cannot therefore issue. The respondents/defendants therefore prayed that the application herein be dismissed with costs to them.

8. The plaintiff/applicant in his submissions stated that the application herein emanated from the suit after he suffered ills under the hands of the defendants/respondents. That the suit progressed well until when he fell ill and remained sick for such a long time thus rendering him incapable of further pursuing the matter. In that regard, it was his case that for the reasons aforesaid, he could not prosecute the matter. He submitted that the matter herein borders on issues of historical injustices and that it is clear that his rights were never protected by the government as ought to have been the case.

9. I have considered the application herein, the responses thereto and the written submissions by both parties and I find that the sole issue for determination in this application is whether the plaintiff’s suit should be reinstated.

10. Order 17 rule 2(1) of theCivil Procedure Rules, which governs dismissal of suits for want of prosecution, provides as follows:“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.”

11. Further order 17 rule 2(3) of the Civil Procedure Rules, states thus:“Any party to the suit may apply for its dismissal as provided in sub-rule 1”

12. Clearly, the statutory threshold set out under order 17 rule 2 of the Civil Procedure Rules is that a suit qualifies for dismissal for want of prosecution: if no application has been made or no step has been taken in the suit by either party for at least one year preceding the presentation of the application seeking dismissal of the suit.

13. In Argan Wekesa Okumu v Dima College Limited & 2 others [2015] eKLR the court considered the principles for dismissal of a suit for want of prosecution and stated as follows:-“The principles governing applications for dismissal for want of prosecution are well settled and have been established by a long line of authorities. The Applicant must show that the delay complained of is inordinate, that the inordinate delay is inexcusable and that the defendant is likely to be prejudiced by such delay. As such the 3rd defendant in this case must meet the burden of proof in seeking the dismissal of the Plaintiff’s case for want of prosecution see the case of Ivita v Kyumbu (1984) KLR 441. Further to this, the decision of whether or not to dismiss a suit is discretionary and this Court must exercise such discretion judiciously. Additionally, each case must be decided on its own facts keeping in mind that a court should strive to sustain a suit where possible rather than prematurely terminating the same.”

14. Whether to exercise the power of dismissal for want of prosecution under order 17 is, however, a matter that is within the discretion of the court. [See Nilesh Premchand Mulji Shah & another t/a Ketan Emporium v MD Popat and others & another [2016] eKLR.

15. My perusal of the record discloses the history of this matter as follows: that the applicant/plaintiff filed the suit herein sometime in the year 2012 against the defendants. Thereafter, the plaintiff/applicant went mute until the court dismissed the matter on September 18, 2017 for want of prosecution. The application herein was filed seeking for orders to set aside and/or vary the court’s orders dated September 18, 2017 for want of prosecution.

16. The question therefore is whether the orders sought herein can issue.

17. Order 17 rule 2 of the Civil Procedure Rules, 2010 provides 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.

18. In the case of Utalii Transport Company Limited & 3 others vs NIC Bank Limited &another (2014) eKLR Gikonyo J stated as follows:“… I will discern the principles which the law has developed to guide the exercise of discretion by court in an application for dismissal of suit for want of prosecution. These principles are: 1. Whether there has been inordinate delay on the part of the claimants in prosecuting the case;

2. Whether the delay is intentional, contumelious and, therefore, inexcusable;

3. Whether the delay is an abuse of the court process;

4. Whether the delay gives rise to substantial risk to fair trial or causes serious prejudice to the respondent;

5. What prejudice will the dismissal occasion the claimant;

6. Whether the claimant has offered a reasonable explanation for the delay;

7. Even if there has been delay, what does the interest of justice dictate: lenient exercise of discretion by the court.”

19. In the case herein, the applicant has submitted that he could not prosecute his suit for the reason that he fell sick and thus remained sickly for long and as such, he could not pursue the matter to ensure its expeditious conclusion. Looking at the record, the applicant attached a treatment card dated February 14, 2017. And as already noted that the suit had been lying before this court without being prosecuted for five (5) years before it was dismissed. The applicant has failed to explain why even assuming that he was sick as shown by the treatment card, why it took him such a long period of time to make an application seeking for the orders sought herein. The treatment card that was annexed is for February 14, 2017 but the application herein was made in May 2022. The applicant did not produce before this court any further evidence explaining why he took a lot of time to prosecute his suit save for that one treatment card which in my view does not give a proper explanation for this court to grant his prayers.

20. The court in Kiiru M’mugambi & 39 others v Moses Kirima Meenye & Kirima Advocates & 3others (2020) eKLR held that:“An applicant ought to be vigilant in prosecution of his case without delay. In this case the applicant took about a year without pursuing prosecution of his application. He stated that the reason was due to technical and unavoidable circumstances, which I consider to be a vague explanation which does not suffice.”

21. Further, I note that the suit was filed hopelessly out of time.

22. In my view, I find no sufficient reason to warrant setting aside of the orders of the court that were made on September 18, 2017.

23. The application herein is not merited and the same is dismissed but no order as to costs.

24. It is so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 9TH DAY OF NOVEMBER, 2022. L NJUGUNAJUDGE