[2023] KEHC 23232 (KLR)

Osman v Royal Media Services Ltd & another (Civil Suit 43 of 2016) [2023] KEHC 23232 (KLR) (Civ) (5 October 2023) (Ruling)

Neutral citation: [2023] KEHC 23232 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Suit 43 of 2016

CW Meoli, J

October 5, 2023

Between

Mohamed Maalim Osman

Plaintiff

and

Royal Media Services Ltd

1st Defendant

Ann Gathoni Muchangi

2nd Defendant

Ruling

1. For determination is the motion dated 26. 09. 2022 by Mohamed Maalim Osman (hereafter the Applicant) seeking inter alia that the order on 16. 03. 2022 dismissing this suit be set aside. The motion is expressed to be brought under Section 1A & 1B of the Civil Procedure Act, Order 12 Rule 7, Order 17 Rule 3 and Order 51 Rule 1 of the Civil Procedure Rules, among others. The motion is premised on the grounds on the face of the motion as amplified in the supporting affidavit sworn by the Applicant.

2. The gist of his depositions is that his counsel on record was served with a notice to show cause (NTSC) why the suit should not be dismissed which was slated for hearing on 24. 02. 2022 and to which a response was filed. However, on the latter date the matter was not listed and unknown to his counsel the NTSCwas fixed for hearing on 16. 03. 2022 resulting in dismissal of the suit for want of prosecution.

3. He goes on to depose that his counsel upon being served with a bill of costs by Royal Media Services Ltd (hereafter 1st Respondent) realized that the NTSC had proceeded on 16. 03. 2022 when the suit was dismissed. He further restates the events leading to the dismissal of the suit and reiterates his desire to prosecute the suit which was delayed by the Covid -19 Pandemic. In conclusion, he deposes that he ought to be granted an opportunity to prosecute the suit by allowing the motion as prayed.

4. The 1st Respondent opposes the motion through the replying affidavit sworn by Gideon Kamau, counsel on record for the 1st Respondent. He views the motion as an abuse of the court process and intended to prevent the 1st Respondent from taxing its bill of costs after the dismissal of the suit. He goes on to depose that from the record it is apparent that the Applicant has not been keen on prosecuting the suit therefore the court rightfully dismissed the same for want of prosecution. That since 09. 12. 2019 when the suit came up for hearing and was adjourned at the Applicant’s behest, he has not taken any steps to prosecute the matter and no compelling explanation has been given.

5. Counsel dismissed the claims attributing delay to the Covid-19 Pandemic, asserting that in that period, the Chief Justice regularly issued various directives for virtual access to court services, hence the Applicant had opportunity to prosecute his suit. That the Applicant has not shown any interest in prosecuting the suit for close to three years until service of the bill of costs which jolted him to file the instant motion.

6. Counsel further points out that a notice issued by the court indicated that the NTSC scheduled for 24. 02. 2022 had been rescheduled to 16. 03. 2022, hence the Applicant’s claim that there was no notice is false. That on the latter date the Applicant and his counsel were absent whereas the court in dismissing the Applicant’s suit considered the response to the notice to show cause. Therefore, the order issued therein was merited and the court is now functus officio.

7. Counsel asserted that there was inordinate and unexplained delay in bringing the instant motion filed three (3) months after the Applicant learned of the dismissal of the suit. He concludes by pointing out that the motion has been brought in bad faith and the Applicant is undeserving on account of his conduct.

8. The motion was canvassed by way of written submissions. Counsel for the Applicant while rehashing the gist of the respective parties’ affidavits anchored his submissions on the decision in John Nahashon Mwangi v Kenya Finance Bank Ltd (in liquidation) [2015] eKLR as cited in Augusto Arduni v Saraf Co. Ltd[2020] eKLRconcerning the principles to be considered in a motion of this nature. Summarily addressing the question of delay, counsel restated the contents of the Applicant’s affidavit material to contend the Applicant has actively prosecuted his suit since filing it and was only slowed down by the onset of the Covid-19 Pandemic. He cited the record evidencing that the Applicant had requested for hearing date before the Pandemic occasioned downscaling of court activities.

9. Other reasons for the delay restated were that counsel was unaware that the notice to show cause was scheduled 16. 03. 2022 until served with the 1st Respondent’s bill of costs after the suit had been dismissed. And on that basis, the Applicant ought to be accorded and opportunity to prosecute the suit to its logical conclusion. He submitted that a reasonable explanation has been offered for the delay and therefore the instant motion has merit. The court was urged to allow the motion as prayed

10. On behalf of the 1st Respondent, counsel began by restating the events leading to the instant. On whether the motion has met the threshold on setting aside of the dismissal order, counsel relied on the decision in Pithon Waweru Maina v Thuka Mugiria [1983] eKLR. In acknowledgement of the principle that setting aside of a dismissal order involves judicial discretion, however, the said discretion is not designed to assist a litigant who has deliberately sought whether by evasion or otherwise to obstruct or delay the course of justice. Asserting that the Applicant was obligated but failed to take steps to progress his suit to its logical conclusion he stated that the consequences should follow as a matter of course.

11. That the explanations relating to the Covid-19 Pandemic and lack of notice of the hearing of the notice to show cause do not stand as courts were operational during the pandemic whereas adequate notice in respect of the change of the hearing date of the notice to show cause was issued. The decision in Josphat Oginda Sasia v Wycliffe Wabwile Kiiya [2022] eKLR was called to aid in the foregoing regard.

12. It was further submitted that it took the Applicant three (3) months to file the instant motion making the total delay herein prolonged, inordinate, and unjustified. That the lack of interest in prosecuting the suit is contrary to the overriding objectives envisioned in Section 1A, 1B and 3A of the Civil Procedure Act. While calling to aid the decision in Alice Mumbi Nganga v Danson Chege Nganga & Another [2006] eKLR, counsel argued that the reasons advanced by the Applicant in his affidavit material are not compelling to warrant the setting aside of the order on dismissal and the court ought to decline to exercise it discretion in the circumstances.

13. Moreover, reinstatement of the suit would only prejudice the 1st Respondent who was dragged to court by a litigant not interested in prosecuting. In conclusion it was submitted that the motion is incompetent, misconceived, an abuse of the court process and ought to be dismissed with costs.

14. Ann Muthoni Gachangi (the 2nd Defendant) did not participate in the entirety of the instant proceedings interlocutory judgment having been earlier entered as against her.

15. The court has perused the court record and considered the material canvassed in respect of the motion. However, before delving into the substance of the motion, the court will address the jurisdictional challenge raised by the 1st Respondent. Its position was that there whereas was no attendance by the Applicant and or his counsel the court in dismissing the Applicant’s suit considered the response to the notice to show cause (NTSC), hence the order issued therein was merited and the court is functus officio on the matter.

16. The Supreme Court of Kenya while expounding on the doctrine of functus officio in Election Petitions Nos. 3, 4 & 5 Raila Odinga & Others v IEBC & Others [2013] eKLR cited with approval the decision in Jersey Evening Post Limited v Al Thani [2002] JLR 542 at 550 to the effect that; -“A court is functus when it has performed all its duties in a particular case. The doctrine does not prevent the court from correcting clerical errors, nor does it prevent a judicial change of mind even when a decision has been communicated to the parties. Proceedings are only fully concluded, and the court functus, when its judgment or order has been perfected. The purpose of the doctrine is to provide finality. Once proceedings are finally concluded, the court cannot review or alter its decision; any challenge to its ruling on adjudication must be taken to a higher court if that right is available.”

17. To contextualize the objection, it is apposite to review the events immediate to the proceedings and eventual dismissal order of 16. 03. 2022. The record reveals that through its Deputy Registrar, the court issued the NTSC pursuant to Order 17 Rule 2 of the Civil Procedure Rules, which notice was initially scheduled for hearing on 24. 02. 2022. According to the notice of the Court carried in the day’s cause list of 24. 02. 2022 exhibited as annexure GK -4 in the replying affidavit, the matters were rescheduled to 16. 03. 2022 as the court was not sitting. This cause was listed therein as item 55. Although the file copy of the said notice is not on record, the fact that the Respondent’s advocate attended court on 16. 03. 2022 lends credence to the fact that the NTSC was rescheduled. Counsel for the 1st Respondent on that date urged dismissal of the suit.

18. Order 17 Rule 2 of the Civil Procedure Rules in its entirety provides that; -(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)A suit stands dismissed after two years where no step has been undertaken.(6)A party may apply to court after dismissal of a suit under this Order.

19. Evidently, by dint of Order 17 Rule 2(6) of the Civil Procedure Rules, a party may approach the court in respect of a dismissal order made pursuant to Order 17 Rule 2. The suit having been dismissed pursuant to a NTSC issued under Order 17 Rule 2, the Applicant ought to have invoked the provisions of Order 17 Rule 2(6) in the motion. Failure to do so however is not fatal as the court is enjoined to administer substantive justice without undue regard to procedural technicalities. It is therefore clear that under sub-rule 2(6) the court’s jurisdiction to entertain an application of this nature is donated by statute. Thus, despite its earlier determination on the NTSC, the court is not functus officio and consequently the 1st Respondent’s preliminary contestation is without merit.

20. Moving on to the substantive issue for determination, by his affidavit material, the Applicant’s explanation in respect of dismissal of the suit is two (2) pronged. Firstly, he claims that the NTSC having initially being slated for 24. 02. 2022, the same was not listed on the said date whereas no notice of the rescheduled date of 16. 03. 2022 was served on his counsel and secondly, the Covid-19 Pandemic disrupted the prompt prosecution of the matter. The 1st Respondent challenges this position by pointing there was notice issued in respect of the NTSC and that Covid-19 Pandemic was not a hinderance to prosecution of the suit as the Chief Justice from time to time issued various directive on operations of the courts by incorporating virtual access to court related activities as such the Applicant had every opportunity to prosecute his suit.

21. From the record the suit herein was filed on 16. 02. 2016 with the 1st Respondent entering appearance and later filing its statement of defence. Since filing the suit in 2016 it took two (2) years for the Applicant to take any action in progressing the matter by way of lodging a request for interlocutory judgment on or about May of 2018. The suit thereafter came up for pretrial directions on 21. 02. 2019 and 27. 02. 2019. When the matter finally came up for hearing on 11. 12. 2019 it was adjourned at the Applicant’s behest due to indisposition of counsel. The next time the matter came up was 16. 03. 2022 when the court dismissed the suit for want of prosecution.

22. The Applicant contends that he only became aware of the dismissal when counsel was served with the bill of costs slated for hearing on 27. 09. 2022. Regarding notice of the NTSC on 16. 03. 2022, it is uncontested that the matter was initially scheduled for hearing of the NTSC on 24. 02. 2022. From the 1st Respondent’s affidavit material, particularly Annexure GK-4 it appears that the court issued a notice rescheduling matters that were coming up for NTSC to 16. 03. 2022 from 24. 02. 2022. Hence the Applicant’s plea of ignorance regarding hearing of the NTSC on 16. 03. 2022 appears to fall flat. Evidently, no effort was made by the Applicant’s counsel having been aware of the initial scheduled date of the NTSC to follow up to find out what directions were issued in respect of the matters coming up on 24. 02. 2022. As before the Applicant returned to his slumber.

23. As for Covid-19 Pandemic this is a lame excuse for a case that lay unprosecuted since 2016. It is a matter of public record that practice directions were promptly issued by the Judiciary leadership to transition the court business to online platforms, including the early adoption of the electronic filing system. Thus, although physical access to courts and registries was indeed limited, parties could correspond with the court and file processes electronically.

24. There is no evidence that prior to the Pandemic in 2016 to 2019 and post Pandemic in 2020 to 2022 the Applicant made any attempts to progress his matter. Cases belong to the litigants who lodge them in court, and in this instance, it is not available to the Applicant to blame the court for his failure to take steps to progress his case. That said, and while such delay runs afoul of the overriding objective, it has not been demonstrated that the 1st Respondent stands to be prejudiced in terms of effectively defending the suit if allowed to proceed.

25. Ultimately, denying a party the right to be heard should be the last recourse for a court. See Pithon Waweru Maina v Thuka Mugiria [1983] eKLR where the Court of Appeal outlined relevant considerations in such an application to include, the nature of the action, whether it is just and reasonable to grant the prayer for setting aside, the prejudice on the respondent and whether he can reasonably be compensated by costs for any delay occasioned.

26. As stated in that case, the discretion of the court to set aside a dismissal order is wide and unfettered. In the case of Shah v Mbogo and Another [1967] E.A 116 cited by the Court in Pithon Waweru Maina’s case, the rationale for the discretion was spelt out as follows :“The discretion to set aside an ex-part judgment is intended to be exercised to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake or error but it is not designed to assist a person who has deliberately sought whether by evasion or otherwise to obstruct or delay the cause of justice.”

27. The principles enunciated in Shah v Mbogo (supra) were further amplified further by Platt JA in Bouchard International (Services) Ltd v M'Mwereria [1987] KLR 193. Although the courts in the above cases were contemplating applications to set aside exparte judgments, the principles pronounced therein apply with equal force in this matter. Indeed, the dismissal order issued herein is equivalent to a judgment as it determined the suit by way of dismissal.

28. At a time when courts are deluged with heavy caseloads, it is not enough for any party caught up with dismissal of his case for want of prosecution to blame peripheral factors without acknowledging their own tardy conduct. Parties and counsel are duty bound to co-operate with the court in the furtherance of the overriding objective to facilitate the just, expeditious, proportionate, and affordable resolution of disputes in accordance with section 1A and 1B of the Civil Procedure Act.

29. Prolonged delay in the prosecution of claims defeats the overriding objective and may well result in unjust outcomes for the innocent party. The suit herein is now over seven years old. I agree with the 1st Respondent that the Applicant’s explanations for the delay appear specious and are barely convincing. The fundamental question to be considered, notwithstanding, is whether justice can still be done between the parties in the circumstances of this case.

30. This suit is founded on the tort of defamation. Despite the obvious laxity on the part of the Applicant in prosecuting the case, it appears just and reasonable to allow the conditional reinstatement of the suit. The 1st Respondent can be compensated for the delay by way of costs. And reviewing all the pertinent matters, the justice of the matter lies in facilitating the Applicants’ right to a hearing while taking measures to obviate undue prejudice against the Respondent.

31. In emphasizing the right of hearing, the Court of Appeal inVishva Stone Suppliers Company Limited v RSR Stone (2006) Limited (2020) eKLR stated the following:“Turning to the request to allow the applicant to exercise his now undoubted constitutionally underpinned right of appeal, the position is... crystalized ... in the case of Richard Ncharpi Leiyagu v IEBC & 2 Others (supra); Mbaki & Others v Macharia & Another [2005] 2 EA 206; and the Tanzanian case of Abbas Sherally & Another v Abdul Fazaiboy, Civil Application No. 33 of 2003; for the holding inter alia that:(i)the right to a hearing is not only constitutionally entrenched but it is also the corner stone of the Rule of law;(ii)the right to be heard is a valued right; and(iii)that the right of a party to be heard before adverse action or decision is taken against such a party is so basic that a decision which is arrived at in violation of it will be nullified, even if the same decision would have been reached had the party been heard, because, the violation is considered to be a breach of natural justice ... ”See also Richard Ncharpi Leiyagu v Independent Electoral and Boundaries Commission & 2 Others [2013] eKLR

32. The parties having already exchanged pleadings and the documents they intend to rely on in compliance with Order 11 of the CPR, and there would be no plausible reason for further delay once a hearing date is fixed. For the reasons given, the court will reluctantly allow the motion on condition that the suit shall be fully prosecuted within 6 (six) months of the ruling date failing which it will stand automatically dismissed for want of prosecution. The costs of the motion are awarded to the 1st Respondent in any event.

DELIVERED AND SIGNED AT NAIROBI ON THIS 5TH DAY OF OCTOBER 2023. C.MEOLIJUDGEIn the presence of:For the Applicant: Ms.Awuori h/b for Mr. OmbatiFor the Respondent: Mr. KamauC/A: Carol