[2010] KEHC 398 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MERU

HCCC NO. 59 OF 2009

LESIIT J.

MURUNGI M’TUARUCHIU.....................................................................APPELLANT

VERSUS

EQUITY BANK & OTHERS..................................................................DEFENDANT

RULING

There are two similar applications brought by the defendants in this suit both of them have been brought under Order XVI rule 5 of the CPR. They seek the dismissal of the plaintiff’s suit against them for want of prosecution. In the application dated 27th April 2010 brought by the 1st defendant he sets out five grounds for the dismissal of the suit which are that the plaintiff has failed to set down the case for hearing since obtaining an injunction on 27th May 2009; that the applicant is suffering untold loss and damage as a result of the delay in prosecuting the case. The application by the 2nd defendant is dated 18th June 2010. The grounds cited by this applicant are that since the plaintiff obtained interlocutory injunction he has not served the 2nd defendant with the plaint and that the delay has prejudiced the applicant.

The respondent has opposed the application. They replying affidavit filed in response of the application is dated 5th November, 2010 and is sworn by Basilio Gitonga, advocate for the respondent. There are two important reactions to the applications in this affidavit. The first one is the advocate’s contention that all the defendants have been served with the summons to enter appearance and it was upon that service that the 1st and the 2nd defendants entered appearance and appointed counsel to represent them. That answer did not conclusively deal with the grounds raised by the 2nd defendant that it has not been served with the plaint.

The second response is the advocates explanation that after serving the 3rd defendant and due to the failure by the 3rd defendant to file any defence the respondent requested for judgment against that defendant and that the request has been delayed because the respondents attempt to get the Process Server who served the 3rd defendant to sign the affidavit of service took a bit of time.

I considered the submissions by Mr. Nyenyire for the 1st defendant, Mr. Ojiambo for the 2nd defendant and Mr. Gitonga for the respondent. The leading case which sets out the principles that should be applied when considering an application for dismissal for want of prosecution is Ivita v Kyumbu 1984 (KLR) 441 where Chesoni J as he then was held:

“2. A defendant who has waived or acquiesced in delay is not entitled to a dismissal of the action for want of prosecution but mere inaction on the part of such defendant does not amount to a waiver or acquiescence.

3. The test applied by the courts in an application for the 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 available time. It is a matter in the discretion of the court”.

The issue is whether the delay complained of is prolonged and inexcusable and whether justice can still be done despite such delay. This suit was filed on 18th May 2009. An application was brought under certificate of urgency seeking an injunctive order on the 20th May 2009. That application was served for inter parties hearing but on the day of the hearing none of the defendants appeared. The judge proceeded to hear the application after which an interlocutory injunction was granted on the 27th May 2009.

The 1st defendant/applicant filed his application for dismissal of the suit on the 27th April 2010. That was less than one year since the suit was filed. I do not think that by any standards a delay of one year can be termed to be prolonged.

The other issue to consider is whether the delay has been explained by the plaintiffs and whether that explanation is credible and excusable. The respondent through his counsel has explained that they are still in the process of pursing the 3rd defendant and the efforts made are set out in the replying affidavit. That explanation is acceptable and also explains the delay in the plaintiff’s failure to take any other step as against the applicant since filing this suit.

Having considered the application before me, I find that there has not been a prolonged and inexcusable delay in prosecuting this case.

1. I dismiss the applicants’ application with no orders as to costs.

2. I direct the plaintiffs to serve the plaint on the defendants if the same has not been done within 30 days of today.

Dated, signed and delivered at Meru this 26th day of November 2010.

LESIIT, J

JUDGE

In the presence of the parties

Kirimi – Court Clerk.

Basilio Gitonga plaintiff/Respondent

Mr. Nyenyire for 1st Applicant

Mr. Ojiambo for 2nd Applicant

DATE 26th November 2010

CORAM

Hon. Lady Justice J. Lesiit – Judge

C/Clerk Kirimi/Mwonjaru

Mr. Nyenyire for Defendant/Applicant

Mr Ojiambo for 2nd Defendant/Applicant

Mr. B. Gitonga for Respondent/Plaintiff

ORDER

Judgment/Ruling delivered in open court.

J. LESIIT

JUDGE.