[2022] KEHC 15998 (KLR)

Nyamogo v ABSA Bank Kenya PLC (Civil Suit 131 of 2015) [2022] KEHC 15998 (KLR) (Civ) (1 December 2022) (Ruling)

Neutral citation: [2022] KEHC 15998 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Suit 131 of 2015

CW Meoli, J

December 1, 2022

Between

Nyamodi Ochieng -Nyamogo

Plaintiff

and

ABSA Bank Kenya PLC

Defendant

Ruling

1. The motion dated January 18, 2022 by Absa Bank Kenya Plc, the defendant herein seeks that the suit by Nyamodi Ochieng-Nyamogo the plaintiff be dismissed for want of prosecution. The motion is expressed to be brought under section 1A, 1B & 3A of the Civil Procedure Act (CPA), order 17 rule 2 (1) & (3) and order 51 rules 1 of the Civil Procedure Rules (CPR), among others. The grounds on the face of the motion are amplified in the supporting affidavit of Michael Massawa, described as a Legal Officer of the defendant.

2. The gist of his affidavit is that the plaintiff filed the suit on April 1, 2015 and thereafter, the defendant entered appearance and filed its defence on May 7, 2015 but to date the suit is yet to be set down for hearing. That in the first instance, no steps were taken by the plaintiff between the filing date and May 2017, to prosecute the suit and the defendant filed a motion seeking to have the suit dismissed for want of prosecution; that upon hearing the motion the court directed that the suit be heard on priority basis and be set down for hearing within thirty (30) days.

3. The deponent asserts that the said directions were not complied with, and the defendant was compelled to file a second similar motion dated February 25, 2020. Once more, the court exercised its discretion in the plaintiff’s favour and sustained the suit and subsequently the suit was listed on March 12, 2020 for pre-trial directions. That since then, the plaintiff had failed to take any steps to progress his case.

4. In addition, the deponent states that more than twenty-two months had lapsed since the matter was last in court and that the delay is not only inordinate, inexcusable, and unjustifiable but also portends grave prejudice upon the defendant. That it is therefore in the interest of justice and fairness that the motion be granted with costs.

5. The plaintiff opposes the motion through a replying affidavit in which he attributes delay in prosecuting the matter to his poor health necessitating ongoing medical treatment in the last five years. That his medical condition had made it difficult to undertake a variety of responsibilities and it is therefore unjust for the defendant to take advantage of his situation.

6. The court directed that the motion be canvassed by way of written submissions. On governing principles, counsel for the defendant anchored his submissions on the pertinent depositions in the supporting affidavit, the provisions of order 17 rule 2(1) & (3) of the Civil Procedure Rules and the decision in Utalii Transport Company Limited & 3 Others v Nic Bank Limited & Another[2014] eKLR. Addressing the issue of delay, counsel called to aid the decisions in Utalii Transport Company Limited (supra) and Ronald Makenzie v Damaris Kiarie [2021] eKLR and reiterated that seven years have lapsed since the filing of the suit and that the plaintiff has been accorded enough opportunity to prosecute it.

7. He points out that the plaintiff has not tendered any evidence in support of the depositions concerning his medical condition. And besides, that the plaintiff is duly represented by counsel hence prosecution of the matter does not require his physical attendance in court as courts operate on virtual platforms since the onset of the COVID-19 pandemic in 2020. He asserts that no satisfactory explanation has been proffered for the delay herein which is inordinate and inexcusable.

8. Reiterating the history of the matter and similar previous motions, the defendant argued that the plaintiff despite being granted reprieve on two separate occasions has failed to prosecute his case; and has not demonstrated that he will suffer prejudice should the suit be dismissed. The court was therefore urged to allow the motion with costs.

9. The plaintiff did not file submissions in respect of the motion despite being accorded ample opportunity to do so.

10. The court has considered the material canvassed in respect of the motion. order 17 rule 2 of the Civil Procedure Rules (CPR) echoes and gives effect to the constitutional injunction in article 159(2) (b) of the Constitution and the overriding objective in section 1A and 1B of the Civil Procedure Act commanding the expeditious dispensation of justice. Order 17 rule 2 of the CPRprovides inter aliathat:“(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.(5)……………….(6)………………. ”

11. The locus classicus on the above rule is the case of Ivita v Kyumbu (1984) KLR 441 which has been followed in a long line of authorities, including those cited by the parties herein. The Court of Appeal restated the principles enunciated therein in the case of Rajesh Rughani v Fifty Investments Limited & Another [2016] eKLR by stating that:“The test for dismissal of a suit for want of prosecution is stated in the case of Ivita v Kyumbu (1984) KLR 441). The test was expressed as follows:The test is whether the delay is prolonged and inexcusable and if it is, whether justice can be done despite such delay. Justice is to both the plaintiff and the 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 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.”See also Argan Wekesa Okumu v Dima College Limited & 2 Others(2015) eKLR.

12. The uncontested history of this matter is well documented. The plaintiff’s suit was filed on April 1, 2015 relating to a cause of action allegedly arising on December 16, 2014. The defendant entered appearance and filed the statement of defence on April 17, 2015 and May 8, 2015 respectively. Since filing of the suit, no steps were taken by the plaintiff to prosecute the matter until May 2017. Thus, on May 8, 2017 the defendant moved the court seeking to dismiss the suit for want of prosecution. On June 5, 2016 Mwongo J upon hearing counsels appearing for the respective parties directed the plaintiff to set down the matter for hearing within 30 days failing which the suit would stand dismissed. On June 14, 2017 the plaintiff fixed the matter for hearing on November 29, 2017 but it was adjourned at the behest of the plaintiff.

13. The plaintiff thereafter fixed the matter for hearing on December 5, 2018. Kamau J equally adjourned the matter at the behest of the plaintiff who had failed to comply with the directions taken before Mwongo J on November 29, 2017. The defendant once more approached the court vide a motion dated January 13, 2020 seeking to have the suit dismissed for want of prosecution. On February 25, 2020 the parties’ advocates appeared before Njuguna J who having heard representations on the motion directed that the matter be heard expeditiously and subsequently mentioned the matter on March 12, 2020, June 3, 2020 and June 17, 2020 after which the suit lay dormant until the defendant moved the court vide the third and instant motion dated January 18, 2022 seeking to dismiss the motion for want of prosecution.

14. The cumulative delay in this case is 7 years whereas it is two years since the suit survived the second dismissal motion. The plaintiff’s proffered explanation for the delay is stated to be his failing health that has allegedly hindered him from prosecuting the suit. To support the averment, the plaintiff attached a photograph image of himself to his affidavit material as annexure “NON 1”. While the court will empathize with any party who falls upon hard times arising from a medical condition, the plaintiff herein as described in his replying affidavit is a longstanding and seasoned advocate of the High Court of Kenya of whom would be expected to furnish better evidence of illness than a mere black and white photograph.

15. There is no telling whether the image in the photograph is that of the plaintiff, and certainly, the image does not ex facie demonstrate any medical condition. It is not clear to the court why a medical report could not be availed. More so as the plaintiff asserts that his medical condition and treatment has been ongoing for several years. A medical report would not only have shed useful light on the health status of the plaintiff and attendant challenges, but also assisted the court in deciding on appropriate directions if it found that the suit ought to be sustained, despite the delay. Indeed, the plaintiff swore and personally executed the replying affidavit, which suggests that his ailment has not affected his basic faculties.

16. Perusing the record of proceedings herein, the court also notes that apart from a statement made on February 25, 2020 before Njuguna J there is no record on past occasions when the hearing of the suit was adjourned at the behest of the plaintiff, to indicate that the plaintiff’s illness was the reason for delay and the other hitches cited in seeking adjournment. The suit has survived two dismissal motions, but it seems that the plaintiff has inexplicably failed to progress his case.

17. As rightly contended by the defendant’s counsel, with the onset of the Covid-19 pandemic, virtual court proceedings and remote attendance by litigants, advocates and witnesses has become the norm. Communication too is instant via electronic means. Thus, there is no requirement for the plaintiff to physically appear either at his counsel’s chambers or in court to attend to his suit. This means that were the plaintiff desirous of progressing his case, he could and ought to have done so despite his unstated medical condition.

18. The onus is always on the plaintiff to take steps to progress his case and in default, when confronted with a dismissal motion such as before the court, to offer a satisfactory explanation for the delay. The explanation offered by the plaintiff viewed in the context of the history of the case is not satisfactory or plausible. The total delay of seven years and latest hiatus of more than two years on the heels of two dismissal motions is prolonged and inexcusable. That the defendant is prejudiced by the continued delay does not appear farfetched. Besides, at a time when courts are deluged by heavy caseloads, no party ought to be allowed to litigate at leisure and at the expense of the adverse party, especially one dragged to court.

19. Equally, as observed in Ivita’s case, extended delay impacts the possibility of a fair trial being eventually held as documents and witnesses may become unavailable, while memories of such witnesses may fade over time. Not to mention escalation of litigation costs. In Karuturi Networks Ltd & Anor v Daly & Figgis Advocates, Civil Appl NAI 293/09 the Court of Appeal had the following to say concerning the overriding objective in section 1A and 1B of the Civil Procedure Act:“The jurisdiction of this court has been enhanced and its latitude expanded in order for the court to drive the civil process and to hold firmly the steering wheel of the process in order to attain the overriding objective….. and its principal aims. In our view, dealing with a case justly includes inter alia reducing delay, and costs expenses at the same time acting expeditiously and fairly. To operationalize or implement the overriding objective, in our view, calls for new thinking and innovation and actively managing the cases before the court…” (emphasis added)See also: Abok James Odera AJ Odera & Associates v John Patrick Machira Machira & Co Advocates[2013] eKLR.

20. Considering all the foregoing, the court is of the firm view that the justice of the matter lies in allowing the dismissal motion dated January 18, 2022. The suit herein is dismissed for want of prosecution with costs to the defendant.

DELIVERED AND SIGNED ELECTRONICALLY ON THIS 1ST DAY OF DECEMBER 2022. C.MEOLIJUDGEIn the presence of:Mr.Wangalwa for the Plaintiff/RespondentMr. Angwenyi for the Defendant/ApplicantC/A: Adika