[2023] KEHC 24974 (KLR)

Njuguna v Mshingo (Civil Appeal 197 of 2018) [2023] KEHC 24974 (KLR) (6 November 2023) (Judgment)

Neutral citation: [2023] KEHC 24974 (KLR)

Republic of Kenya

In the High Court at Mombasa

Civil Appeal 197 of 2018

DKN Magare, J

November 6, 2023

Between

Erick Muriithi Njuguna

Appellant

and

Racheal Mshingo

Respondent

Judgment

1. This is an appeal from the Ruling and order of Hon. A S Lesootia given in 839 of 2010 in that ruling the Court had declined to set aside the order for dismissing the suit for non-attendance.

2. The primary file was filed on 6/10/2023 claiming material damages of Ksh. 86,482.

3. Defence was field on 4/5/2010. The Appellant filed list of witnesses and documents on 7/11/2012. They related to an accident in 2006, that is 24/12/2006.

4. The limitation period should have lapsed on 24/12/2009. The suit was filed on 6/4/2010. Defendant filed their documents dated 7/11/2012 and a witness statement on 23/1/2013 was filed on 26/4/2018.

5. The matter came for hearing when the Appellant, who was the did not attend court. Neither were the Advocates present in court. The defendant had not admitted any part of the claim. The court, having been satisfied that appellant had no reason to be absent and the defendant admitted no part of the claim, after calling the suit, requisite number of times, dismissed the same for non-attendance

6. The Appellant made an application to reinstate the suit having been dismissed. He attributed nonattendance to error of Counsel. He states that Counsel was instructed to hold brief but did not. There was no indication where the witnesses were. This was an era of physical attendance.

7. The Respondent stated that the suit was filed 7 years back and the Appellant had lost interest. They filed another application dated 7/6/2018, instead of just fixing the application for hearing, they sat by. Once again Appellant did not attend court for the application for reinstatement. It was argued by way of written submissions.

8. The court in its ruling stated that the Applicant fixed the suit for hearing and did not attend Court. The reason he gave was sickness and no evidence was given. He did not name Counsel who was to hold brief. He noted that a witness had testified way back in 2015.

9. He noted that the matter was adjourned at the instant of the Applicant. The court did not find the reasons convincing. This was exercise of discretion.

10. In the case of Mbogo and Another vs. Shah[1968] EA 93 where the Court stated:“…that this Court will not interfere with the exercise of judicial discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which is should not have acted or because it failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.”

11. It is not enough that the court could have reached a different decision. The exercise of discretion was judicious. I am further fortified by the knowledge that reinstating the suit I will not serve any purpose as the suit is time barred. There is no need to reinstate a suit for it to be struck out for being time barred. It is not prudent use of Judicial resources.

12. I therefore agree with the trial Court in exercise of its discretion. The discretion was exercised judiciously. The matter cannot lie till Godot comes. It is a minor claim of a sum of. 86,482/=. The heavens will not fall if the case is not reinstated.

13. In the case of Mukisa Biscuit Manufacturing Co. Ltd v. West End Distributors Ltd. (1969) EA 696, the Court of Appeal for Eastern Africa stated as doth: -

14. I am aware that the court should not lightly drive a party from the seat of justice. In the case of DT Dobie & Company Ltd vs Muchina [1982] eKLR, the Court of Appeal stated as thus;“The Court ought to act very cautiously and carefully and consider all the facts of the case without embarking upon a trial before dismissing a case for not disclosing a reasonable cause of action or being otherwise an abuse of the Court. At this stage, the Court ought not to deal with any merits of the case for that is a function solely reserved for the judge at the trial as the Court itself is not usually fully informed so as to deal with the merits without discovery, without oral evidence tested by cross-examination in the ordinary way. As far as possible indeed, there should be no opinions expressed upon the Application which may prejudice the fair trial of the action or make it uncomfortable or restrict the freedom of the trial judge in disposing of the case in the way he thinks right.” (emphasis mine)

15. In Simon Kirima Muraguri & another v Equity Bank (Kenya) Limited & another [2021] eKLR, Justice E. C. MWITA, siting as a High Court of Kenya, at Kajiado, had this to say: -“21. The jurisdiction to strike out pleadings is discretionary and must be exercised judicially. In Postal Corporation of Kenya v I. T Inamdar & 2 Others [2004] 1 KLR 359, the court stated that the law is now well settled that if the defence filed by a defendant raises even one bona fide triable issue, then the defendant must be given leave to defend.

16. In the Co-operative Merchant Bank Ltd. v George Fredrick Wekesa (Civil Appeal No. 54 of 1999) the Court of Appeal stated: Striking out a pleading is a draconian act, which may only be resorted to, in plain cases...Whether or not a case is plain is a matter of fact...Since oral evidence would be necessary to disprove what either of the parties says, the appellant’s defence cannot be said to present a plain case of a frivolous, scandalous, vexatious defence, or one likely to prejudice, embarrass or delay the expeditious disposal of the respondent’s action or which is otherwise an abuse of the process of the court.

17. In Yaya Towers Limited v Trade Bank Limited (In Liquidation) (Civil Appeal No. 35 of 2000) the same court expressed itself thus:“The Appellant(defendant) is entitled to pursue a claim in our courts however implausible and however improbable his chances of success. Unless the defendant (plaintiff) can demonstrate shortly and conclusively that the plaintiff’s claim is bound to fail or is otherwise objectionable as an abuse of the process of the Court, it must be allowed to proceed to trial...It cannot be doubted that the Court has inherent jurisdiction to dismiss that, which is an abuse of the process of the Court. It is a jurisdiction, which ought to be sparingly exercised and only in exceptional cases, and its exercise would not be justified merely because the story told in the pleadings was highly improbable, and one, which was difficult to believe, could be proved.”

18. In the case of Thathini Development Company Limited v Mombasa Water & Sewerage Company & another [2022] eKLR, Justice Naikuni stated as doth; -“The Legal substratum for dismissal of suits for want of prosecution is founded on the Principles that litigation must be expedited, and concluded by parties who come to court for seeking justice. To assist in clearing backlogs in court and the ever increasing over-loads restoring bad public confidence and trust on the judiciary. Upon filing of cases parties should efficiently and effectively be seen to fast track their hearing and determination. There should be no delay at all based on legal maxim – Justice delayed is justice denied” Nonetheless, should there be any delay arising from one substantive and justifiable logistical cause or reason, the same should not be inordinate, unreasonable and inexcusable. I say so, as that would be doing grave injustice to one side or the other or both and in such circumstance, the Honorable May in its discretion dismiss the action straight away.11. Additionally, the provisions of order 17 rule 2 (3) of the Civil Procedure Rules provides, inter alia:-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 dismissed and if cause is not shown to its satisfaction, may dismiss the suit.2).………3).any party to the suit may apply for its dismissal as provided in Sub-rule 1”.”7. The good judge continued as doth: -“In the case of “Ivita – Versus - Kyumbu [1984] KLR 441 the Court laid down principles for issuance of an order of dismissal of suit for want of prosecution. It stated:-“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 it 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”.

19. The cases above call for restraint either when striking out a suit or eve dismissing the same. Taking away a right to be heard, is not to be taken lightly. However, when a person has a minor claim and takes 13 years through the corridors of justice, it is neither judicious nor tenable. It is an unfair dragging of the defendant through mad without the end in sight.

20. In this case, the suit is hopeless by dint of section 4(2) of the Limitation of Actions act. The section provides as doth; -“Actions of contract and tort and certain other actions(1)The following actions may not be brought after the end of six years from the date on which the cause of action accrued—(a)actions founded on contract;(b)actions to enforce a recognizance;(c)actions to enforce an award;(d)actions to recover a sum recoverable by virtue of a written law, other than a penalty or forfeiture or sum by way of penalty or forfeiture;(e)actions, including actions claiming equitable relief, for which no other period of limitation is provided by this Act or by any other written law.(2)An action founded on tort may not be brought after the end of three years from the date on which the cause of action accrued:

21. The suit could not cannot be salvaged. It is thus crucial to save the same from the ignominy of its own incompetent, by not reinstating a fatally defective and hopeless suit. Further for a simple material claim of Ksh. 84,482 taking one and half decades is not prudent. The Appeal is thus unmerited and is accordingly dismissed with costs.

Determination 22. I make the following orders: -a.The appeal herein is bereft of merit and is thus dismissed with cost of 55,000/=.b.The costs shall be paid within 30 days, in default execution do issuec.The file is closed.

DELIVERED, DATED AND SIGNED AT MOMBASA ON THIS 6TH DAY OF NOVEMBER, 2023. JUDGMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.KIZITO MAGAREJUDGEIn the presence of:-Waithera for AppellantNo appearance for the RespondentCourt Assistant - Brian