[2014] KEHC 4220 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

COMMERCIAL & ADMIRALTY DIVISION

MILIMANI LAW COURTS

CIVIL SUIT MISC. NO. 720 OF 2009

PROFESSOR MWANGI S. KIMENYI ...........................................................................................PLAINTIFF

Versus

THE HON. ATTORNEY GENERAL......................................................................................1ST DEFENDANT

KENYA INSTITUTE FOR PUBLIC POLICY SEARCH AND ANALYSIS (KIPRA)..........2ND DEFENDANT

RULING

Reinstatement of suit

[1] I am dealing with a Motion dated 30th July, 2013 which is asking the court to set aside the order issued on 29th February 2012 in which this suit was dismissed. The application also prays for re-activation of the suit to be heard on merit either by this court or the Industrial Court. If successful, an order of transfer to the Industrial Court will be required. A prayer for amendment of the plaint also saddles upon the application. The subject application had been dismissed on 5th February, 2014 but was reinstated by the court upon consent of the parties.

A preliminary issue

[2] I should think the question whether notice for dismissal of this suit was given under Order 17 rule 2 of the Civil Procedure Rules (hereafter CPR) is a matter of preliminary significance. First, there is no mandatory requirement under Order 17 rule 2 of the Civil Procedure Rules that a notice should be given to the plaintiff before a suit which offends the order is dismissed for want of prosecution. Equally, Order 17 rule 2 of the CPR uses the word ‘’give’’ and not ‘’serve’’. To give notice is not the same thing as to serve notice within the context of the civil procedure. The distinction between the two terms is important because both are legal as well as technical but bear different meanings and entail different mechanisms albeit, however, both are intended to bring the matter at hand to the notice or attention of the party to be affected by the proceeding. ‘’Give’’ in the context of Order 17 rule 2 of the Civil Procedure Rules denotes ‘’to impart or confer by a formal act’’ whereas ‘’serve’’ in the legal sense denotes ‘’to make legal delivery of the court process’’. See Black’s Law Dictionary, Ninth Edition on this. My own view, therefore, is that a notice under Order 17 rule 2 of the Civil Procedure Rules is deemed to have been given by the Court when it is placed in the official website of the Judiciary or in the cause list. Accordingly, notice for dismissal of this suit was given by the court through its website and the cause list for 29th February, 2012. See also the decision by Kimaru J in the case of JASON MUNGAI KAMAU v JANE KAMAU & 4 OTHERS [2008] eKLR. That issue is so settled and what remains is for me to determine whether the delay herein is inordinate and unexplained.

The Plaintiff’s case

[3] The Plaintiff submitted that the application dated 30th July, 2013 concerns an order made on 29th February, 2012. According to the Plaintiff, there has been no correspondenceeven by a simple letter addressed either to the plaintiff or to the Court on the issue of prosecuting this case or counterclaim at all was issued. On 29th February, 2012, the day of the Notice to show Cause the Defendants did not attend, of file any affidavit. , supporting either way. The 1st Defendant although he supported the Appellant in the civil Appeal concerning the Judicial review at the appeal hearing, he had not himself filed any appeal or even any ground of affirming the appeal or otherwise. The only “prejudice” mentionedin the grounds, now filed to oppose the re-activation of this claim, at ground 8, is that the 2nd Defendant and the Government at large is facing financial constraints on account of misappropriation of funds by the Plaintiff”.Then one wonders, if truly this allegation is well founded, isn’t the best recourse for the Defendants be a hearing and determination on merit?

[4] Alternatively, the Plaintiff contended that if there was inordinate delay in prosecuting this case in light of the fact that the Civil Appeal herein was being prosecuted and defended vigorously, then it should be a charge to be equally shared by the parties. In inordinate delay for purposes of dismissal for want of prosecution does not include the time which elapsed before the suit was filed. The only delay is the one after the suit is filed, and in the facts of this case there is no delay to warrant a dismissal for want of prosecution. In situations where both parties are to blame,for the inordinate delay, the law is as set out in the case of AUSTIN SECURITIES v NORTHGATE AND ENGLISH STORES LTD [1969] 1 WLR 529 that;

“…the Court will look at the conduct of both parties. If the defendant has considerably contributed to the delay or, a fortiori, has actually agreed to it, he will seldom obtain the dismissal of the action...’’

[5] The Plaintiff urges the Court to invoke its inherent power in this case in the interest of substantive justice and re-instate the suit. They find support in Article 159 (d) of the Constitution. The Plaintiff is willing to abide by any condition the court may place in granting the application. They relied on the following judicial authorities:

The Civil Procedure Act, and Rules, Cap 21, Orders 17 Rule 2(2)

Smuggler Inn –vs- PNG Banking Corp [2006] 5 LRC 356, at 362-362

The Supreme Court Practice 1997, Vol. 1 Sweet & Maxwell, Chapter 25 pages 461-466

Birkett –vs- James [1977] 2 ALL ER 801

[6] The advocate for the Plaintiff submitted further that there was a counter-claim in the suit. The Attorney General was also not present on the material day when the suit was dismissed. He informed the court that had he appeared, he would have mentioned to the court about the existence of decision of the Court of appeal which held prosecution of this case. And although the Appeal took long due to one reason or other which was not of the Plaintiff’s default, it has now been decided and it is only fair that the court exercises discretion leniently and allow this case to be heard on merit either by this Court or Industrial Court. A dismissal will occasion the Plaintiff substantial damage for no fault of his. He has been and still is desirous of prosecuting this case. Counsel, however, admitted there was an oversight on their part, and tendered an apology.

The Defendants opposed the application

[7] The Defendants in their respective rejoinders are of the view that the delay herein is inordinate, it has not been explained and, therefore, inexcusable. The conduct of the Plaintiff in not prosecuting this suit is indolent and should not excite any lenient exercise of discretion by the court. Further, the Defendants submitted that the Plaintiff cannot take advantage of the pendency of and the time Appeal Case No 160 of 2008 took to be finalized because there was no stay of these proceedings in the first place.

[8] Mr. Ngatia, advocate for the 2nd defendant made specifc submissions in opposition to the application. He relied on the two Replying Affidavits filed on 15/10/2013 and 17/10/2013. He also relied on the judicial authorities in the list of authorities which he filed. Counsel submitted on issuance of notice for dismissal but I need not reproduce those submissions as the issue has already been determined preliminarily. He made further submissions that the last pleading was filed on 21/4/2010. The suit was dismissed about 2 years after the last pleading. There was total inactivity in the suit during that period. It was he who mentioned to the judges of the Court of appeal on 21/2/2013 that this suit had been dismissed. The judgment in the Court of Appeal case was delivered on 15/3/2013. The motion before the Court now, was filed in August 2013. There are two periods of inaction which have not been explained. Counsel cited authorities on the inaction. Judicial Review proceedings were filed by the plaintiff in 2005 relating to the same contract of employment which is the subject of the dismissed suit. Despite opposition by counsel on jurisdiction, the judge overruled him and entered judgment for the Plaintiff. Employment issue was argued at length in the judicial review. Counsel then filed the appeal on the judicial review and the Court of Appeal nullified the High Court judgment. The Plaintiff took no action to progress his case then. Counsel referred the court to judicial authorities –No. 3 at page 658 – where a period of inaction of nearly two years was considered inappropriate and inexcusable. Authority No. 4 also supported that position. Counsel urged the court to reject the excuse given.

[9] Mr Ngatia responded to the issue on his illness but since Mr Kihara dropped the matter, I will not say anything about it. it so rests.

[10] Mr Ngatia addressed the third ground which posits that there was no stay by the Court of Appeal. He stated that Pre-trial process ought to have been completed. He stated the law perfectly that the power and discretion of the Court to reinstate a suit should be exercised on materials before the court. He referred to Authority No. 2 on the exercise of court’s discretionary power to reinstate suit. In that case, there was a delay of 30 days in applying for reinstatement of the appeal. The full Court of Appeal at page 6 said the since the 30 days’ delay was not explained, the application should have been dismissed. The delay in our case has not explained i.e. the 6 months between the judgment of the Court of Appeal and the filing of the application before you. He urged the Court to dismiss the application with costs.

[11] Mr. Ayoo, advocate for the 1st defendant opposed the application based on grounds of opposition filed by them. He also associated himself with the submissions by Mr. Ngatia. He asked the court to dismiss application with costs.

Mr Kihara replied

[12] Mr Kihara replied that Mr. Ngatia had joined issue in his defence on the substance of the appeal which then prevented this case from being prosecuted. He insisted that the cause of delay had been explained in the supporting affidavit and letters exchanged between him and Ngatia. He also submitted that the decisions cited by Ngatia are not squarely on similar facts as the present case. And that the English decisions do not apply to the point as such. He said the Plaintiff is ready to pay costs on reinstatement of the suit.

COURT’S RENDITION

[13] The major issue I should determine is whether the delay herein has been explained such that this suit ought to be reinstated for trial. The law governing dismissal of suit for want of prosecution cannot be called upon to justify itself; it is well settled. I am content to cite a work of this court in the case of NBI HCCC NOUTALII TRANSPORT COMPANY LIMITED& 3 OTHERS v NIC BANK & ANOTHER [2014] eKLRthat.

When the Applicant states and correctly so, that:

‘’It is the primary duty of the Plaintiffs to take steps to progress their case since they are the ones who dragged the Defendant to court’’.

Then exhorts that

‘’Over one year has lapsed without the Plaintiffs taking any step to progress their case’’.

And makes a strong conclusion that

‘’The Plaintiffs’ inertia runs contra to the overriding objective of the court stipulated in section 1A, 1B and 3A of the CPA’’.

The first intuitive feeling one gets is that the offending proceeding should quickly be removed out of the way of the innocent party. But, the law prohibits a court of law from such impulsive inclination, and requires it to make further enquiries into the matter under the guide of defined legal principles on the subject of dismissal of cases for want of prosecution; a view which is undergirded by the fact that dismissal of a suit without hearing the merits is draconian act which drives the plaintiff from the judgment-seat. It is, therefore, a matter of discretion by the court. See the opinions of Danckwerts, LJ inNAGLE v FIELDEN [1966] 2 QBD 633 at p 648,and Lord Diplock inBIRKET v JAMES [1978] A.C. 297. A great number of cases in the Court of Appeal have adopted that approach but I do not wish to multiply them. Accordingly, 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 Plaintiffs 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 Defendant;

5) What prejudice will the dismissal occasion to the plaintiff?

6) Whether the plaintiff 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?

[14] There is no precise measure of what amounts to inordinate delay. Inordinate delay will differ from case to case depending on the circumstances of each case; the subject matter of the case; the nature of the case; the explanation given for the delay; and so on and so forth. Nevertheless, inordinate delay should not be difficult to ascertain once it occurs; the litmus test being that it should be an amount of delay which leads the court to an inescapable conclusion that it is inordinate and therefore, inexcusable. Caution is, however, advised for courts not to take the word ‘’inordinate’’ in its dictionary meaning, but to apply it in the sense of excessive as compared to normality. Therefore, inordinate delay for purposes of dismissal for want of prosecution should be one which is beyond acceptable limits in the prosecution of cases. See the case of ALLEN v ALFRED McALPHINE & SONS [1968] 1 All ER 543:where a delay of fourteen (14) years was considered inordinate and inexcusable. But see also the cases of AGIP (KENYA) LIMITED v HIGHLANDS TYRES LIMITED [2001] KLR 630and SAGOO v BHARI [1990] KLR 459,where delay of eight (8) months and five (5) months, respectively was considered not to be inordinate. And also NBI HC ELC CASE NO 2058 OF 2007where delay of about 1 ½ years was considered not to be inordinate. At this point, I think I should examine the circumstances of this case and the amount of delay involved to determine whether it is inordinate and inexcusable?

[14] The decision whether a suit should be re-instated for trial is a matter of justice and it depends on the facts of the case. See the case ofIVITA v KYUMBU [1984] KLR 441, Chesoni, J. (as he then was) 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 the 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.”

[15] The Plaintiff’s explanation for the delay is that the Appeal on the Judicial Review case which was based on the same subject matter as this case took too long to conclude. Both parties were vigorously involved in the prosecution of the said appeal. That is an indication that he is keen on this case. He also says that the Defendants joined issue in their defences when they pleaded thee dismissed suit. This case also featured in the arguments put forth in the appeal. He tends to apportion blame between the parties. But the Defendants were categorical that the appeal was different and separate from the dismissed suit and cannot be relied upon to explain the delay herein. Mr Ngatia even stated that there were two instances of inaction; 1) from the time the pleadings were closed to the time the suit was dismissed; and 2) from the time the appeal was determined to the time of the filing of this application. The first inaction consists in over two years while the latter six months. According to Mr Ngatia, these two periods of inaction have not been explained.

[16] I admit that a party should always take steps to progress his case to logical conclusion. That is a requirement of justice and the overriding objective in assisting the court to attain expeditious and just disposal of cases which follows after the long standing adage; justice delayed is justice denied. So where the plaintiff commits acts of inordinate delay in prosecuting his case, he occasions injustice on the Defendants. But courts of law are courts of justice to all the parties. And as I stated earlier, dismissal of a case is a draconian judicial act which drives the plaintiff away from the seat of judgment. It should be done sparingly and in cases where dismissal is the feasible and just thing to do. Therefore, courts should strive to sustain suits rather than dismiss them especially where justice would still be done and fair trial had despite the delay. Any explanation for the delay which is given should be properly evaluated by the court to see whether it is reasonable. That notwithstanding, a court of law should not hesitate to dismiss a suit for want of prosecution where it strongly feels the sustenance of the suit will only breed extreme prejudice to the Defendant. But in ascertaining prejudice to the Defendant it must also weigh the prejudice the dismissal will cause to the Plaintiff. The balance thereof need not be symmetrical, but the impulsion should come from the dictates of justice and where need be, the suit should be sustained.

Is there any substantial risk to fair trial or serious prejudice to the Defendant?

[17] Looking at the material before me and the explanation offered, the delay in prosecuting the suit is not inexcusable, or contumelious, for there has not been any disobedience of a peremptory order of the court. Absent of such disobedience, I think the explanation offered is reasonable. I note, however, that there was complete failure to take out pre-trial processes. But failure to carry out pre-trial processes per se may not be a disobedience of a peremptory order of the court. The way the Plaintiff pursued the appeal does not portray him as a dilatory suitor who does not care about his suit. The Judicial Review proceedings related to the same contract of employment and are pleaded in the suit. The connection between the two may not be glossed over as even in those judicial proceedings the Plaintiff was pursuing a sort of relief.

[18] A further re-consideration of the circumstances of the case also reveals that the delay herein has not given rise to substantial risk to fair trial or resulted into grave injustice to the Defendants. The hearing of the case is still possible without causing injustice or extreme difficulties in the trial. The issues herein were kept alive throughout the entire proceedings in the Judicial Review proceedings up to the appellate level. See the case of NJUKI GACHUGU v GITHI [1977] KLR 108. This approach is not oblivious of the desirability that litigants should prosecute their cases expeditiously. I have stated before that failure to take out pre-trial processes alone should not constitute a sole ground for dismissing a suit. For re-instatement of suit to give rise to substantial risk to fair trial or result into grave injustice to the Defendants, the Defendant must show he suffered some additional prejudice which is substantial and results to 1) impending fair trial; 2) aggravated costs; or 3) specific hardships to the Defendant. It must also be shown that the delay has worsened the Defendant’s position in the suit. It will not, therefore, be sufficient to just make a general assertion that you will suffer prejudice without showing the particular prejudice as spelt out herein above. This thought derives legitimacy as a principle of law drawing upon the Constitution; promoting access to justice; enforcing the principles of justice especially on substantive justice in Article 159 of the Constitution; and achieving just resolution of disputes filed in court through a fair and public hearing in accordance with Article 50(1) of the Constitution. See the opinion of Russel L.J. in WILLIAM C. PARKER LTD v F.J. HAM & SONS at p 1586which was quoted in BIRKET v JAMES p 335.

What prejudice will the plaintiff suffer by the dismissal?

[19] In assessing the prejudice caused to the Defendant by the delay, the court should also assess the likely prejudice the dismissal of the suit will occasion upon the plaintiff. See ALLEN v ALFRED McALPHINE, BIRKET v JAMESand AGIP (KENYA) LTD.The prejudice to the plaintiff will be ascertained by looking at a number of varying factors which, among the major ones are: the nature of the case-e.g. public litigation, representative suit etc., importance of the claim or subject matter, legal capacity of parties, rights of the parties in the suit and so on. The cause of action in this case is quite substantial and raises serious issues of breach of contract of employment and rights of an employee. The defence in its counter-claim raises serious allegations that the Plaintiff made irregular payment to himself. In law the counter-claim survives on dismissal of the suit and Order 7 rule 13 is instructive thereto; a fact that gives this case a different dimension and which makes it desirable that the suit is reinstated. These matters will squarely and truly be considered by the court if the case is heard on merit in order to avoid a miscarriage of justice.

Was the delay explained?

[20] I admit it was necessary for the Plaintiff to have taken steps to advance his case and also file this application promptly. That notwithstanding, I am persuaded the circumstances of this case justifies giving the Plaintiff another chance which is not only the feasible but also the just thing to do. I accept the explanation provided to be reasonable explanation for the delay.

The court will exercise discretion leniently

[21] Consequently, upon the analysis of all legal considerations, it is clear the direction the court is taking on this matter. But before I close, I will re-state; the acceptable test is that;

1) When the delay is prolonged and inexcusable, such that it would cause grave injustice to the one side or the other or to both, the court may in its discretion dismiss the action straight away. However, it should be understood that prolonged delay alone should not prevent the court from doing justice to all the parties- the plaintiff, the Defendant and any other third or interested party in the suit; lest justice should be placed too far away from the parties.

2) Invariably, what should matter to the court, is to serve substantive justice through judicious exercise of discretion which is to be guided by the following issues; 1) whether the delay has been intentional and contumelious; 2) whether the delay or the conduct of the plaintiff amounts to an abuse of the court; 3) whether the delay is inordinate and inexcusable; 4) whether the delay is one that gives rise to a substantial risk to fair trial in that it is not possible to have a fair trial of issues in action or causes or likely to cause serious prejudice to the Defendant; and 5) what prejudice will the dismissal cause to the plaintiff. By this test, the court is not assisting the indolent, but rather it is serving the interest of justice, substantive justice on behalf of all the parties.

[22] Accordingly, I set aside the order issued on 29th February, 2012 dismissing this suit. The suit is re-instated; alive and kicking provided that the plaintiff complies with all preparatory or any peremptory requirements of the law in order to progress the case before the Industrial Court to which I commit the file for hearing and final disposal. The plaintiff is the author of the state of affairs in this case and so he shall pay costs to the Defendants. Accordingly, the case is transferred to the Industrial Court for hearing. It is so ordered.

Dated, signed and delivered at Nairobi this 2nd day of July, 2014

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F. GIKONYO

JUDGE