[2022] KEHC 12027 (KLR)

Ndungo v Mwaura & 2 others (Civil Suit 519 of 2011) [2022] KEHC 12027 (KLR) (Commercial and Tax) (17 June 2022) (Ruling)

Neutral citation: [2022] KEHC 12027 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Commercial and Tax

Civil Suit 519 of 2011

A Mshila, J

June 17, 2022

Between

Joseph Waweru Ndungo

Applicant

and

Peter Gichora Mwaura

1st Respondent

Paul Kungu Kamata

2nd Respondent

and

Housing Finance Co. Of Kenya Ltd

Defendant

Ruling

1. The applicant filed a notice of motion dated July 12, 2021 under order 17 rule 2(3) of the Civil Procedure Rules, 2010 and section IA, 1B and of the Civil Procedure Act for orders that;a.This suit be dismissed for want of prosecution;b.The costs of this application and of the suit be borne by the plaintiffs.

2. The application was supported by the sworn affidavit of Migui Mungai and the grounds on the face of the application.

3. There was no response to the application filed by the other parties.

Issues For Determination 4. The court has considered the applicant’s application and the only issue for determination is;a.Whether the suit should be dismissed for want of prosecution?

Analysis Whether The Suit Should Be Dismissed For Want Of Prosecution; 5. The Application was brought under order 17 rule 2(3) of the Civil Procedure Rules which provides that;2. (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 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.

6. Whether to exercise the power of dismissal for want of prosecution under order 17 is a matter that is within the discretion of the court. In the decision in Nilesh Premchand Mulji Shah & another t/a Ketan Emporium v MD Popat and others & another [2016] eKLR, the court stated as follows:“11. Nonetheless, article 159 of theConstitution and order 17 rule 2(3) gives the court the discretion to dismiss the suit where no action has been taken for one year and on application by a party as justice delayed without explanation is justice denied and delay defeats equity. That discretion must be exercised on the basis that it is in the interest of justice regard being had to whether the party instituting the suit has lost interest in it, or whether the delay in prosecuting the suit is inordinate, unreasonable, inexcusable, and is likely to cause serious prejudice to the defendant on account of that delay. This is what the case of Ivita v Kyumba [1984] KLR 441 espoused that:“The test applied by the courts in the application for 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 time. It is a matter of and in the discretion of the court.”

7. 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, where it 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.”

8. Has there been inordinate delay that is likely to prejudice the defendants in this suit? This suit herein was filed on November 21, 2011, the 1st defendant statement of defence was filed on January 30, 2012 and the 2nd defendant filed its statement of defence on February 8, 2012.

9. This matter first came up for hearing on the July 9, 2019 where counsel for the plaintiffs applied for adjournment on the ground that the witnesses were unwell. Thereafter, the matter came up again for hearing on the November 25, 2019 when the counsel for the plaintiffs applied for another adjournment on the ground that the 1st plaintiff who was one of the witnesses was still unwell.

10. Further,the 1st plaintiff passed away on December 6, 2019 the application for his substitution was filed on November 6, 2020. The matter then came up for another hearing on November 23, 2020 but the same did not proceed since the advocate for the plaintiffs was in the process of substituting the 1st plaintiff who was deceased. Lastly, when the application for substitution of the 1st plaintiff came up for mention for directions on December 8, 2020, there was no appearance by the plaintiffs.

11. The said application came up for further mention for directions on March 22, 2021, May 24, 2021 and July 5, 2021 respectively, there was no appearance for the plaintiffs during all the said dates despite the fact that the advocates for the plaintiffs had been duly served with all the notices.

12. The test applied by court in the application for dismissal of suits for want of prosecution is whether the delay is prolonged and inexcusable and if it is, whether justice can be done despite the delay. The plaintiffs did not respond to the present application to explain the reason for the delay and thus cannot be deemed as still being keen and interested in pursuing their matter.

13. A cursory look at the proceedings of the court in this matter shows that the defendants have been actively pursuing the hearing of this suitand it is now over ten (10) years since this suit was filed and the delay is unexplained, therefore inexcusable.

14. In light of the above, this court is satisfied that this matter is ripe for dismissal for want of prosecution.

Findings And Determination 15. For the forgoing reasons the Application for dismissal of the suit for want of prosecution is found to have merit and is hereby allowed.

16. The suit is hereby dismissed for want of prosecution;

17. The respondent is hereby condemned to pay the costs of this suit.Orders accordingly.

DATED, SIGNED AND DELIVERED ELECTRONICALLY AT NAIROBI THIS 17TH DAY OF JUNE, 2022. HON A MSHILAJUDGEIn the presence of;Mrs Maina for the 2nd defendant/respondent.Kamata for the plaintiffs/respondents.Masinde holding brief for Mr Muigai for the 1st defendant/applicant.Lucy----------------------------court assistant.