[2018] KEHC 6384 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KIAMBU

CIVIL APPEAL NO. 19 OF 2017

1. PAUL MBAGE MUTHARI........................1ST APPELLANT

2. SIMON MUNIU KURIA.............................2ND APPELLANT

VERSUS

GACHEGE TEA FACTORY CO. LTD.......1ST RESPONDENT

PETER MBAGE MUTHARI........................2ND RESPONDENT

(Being an appeal from the Ruling delivered on 31/01/2017

in Thika Chief Magistrate’s Court

Civil Case No. 979 of 2012(Hon. G. Omodho))

JUDGMENT

1. The Appellants launched Thika Chief Magistrate’s Court Civil Suit No. 979 of 2012 vide a Plaint dated 03/12/2012. The claim in the suit was straightforward: it alleged that the 1st Respondent had refused to accept tea from the Appellants’ farm known as Ndarugu/Kamunyaka/380 to the Tea Factory with the result that the tea had gone to waste. The Appellants alleged that the actions of the Respondents had caused them loss of Kshs. 2,204,126/-. The suit sought liquidated damages in that amount as well as costs of the suit plus interests at Court rates.

2. Both Respondents entered appearance through their respective advocates and filed Statements of Defence. The last pleading in the matter, a Statement of Defence, was filed by the 2nd Respondent on 15/03/2013.

3. All went quiet afterwards.

4. On 22/09/2016, the 1st Respondent filed a Notice of Motion seeking for the dismissal of the suit for want of prosecution. The 2nd Respondent did not oppose the Application. The Appellants did; and they filed a Replying Affidavit in opposition. The parties’ advocates orally argued the Application and, on 31/01/2017, the Learned G. Omodho delivered her ruling granting the 1st Respondent’s Application dismissing the suit for want of prosecution.

5. The Appellants are aggrieved by that decision and have filed the present appeal. The Appeal is opposed by both Respondents.

6. This is a fairly simple appeal. The Appellants claim that it was wrong for the Learned Trial Magistrate to dismiss their suit for three reasons:

a) First, they argue that the Application for dismissal by the Respondents was founded on the wrong provisions of the law and that therefore it should not have been granted. They say that the Notice of Motion was expressed to have been founded on Order 17 Rule 2(1) of the Civil Procedure Rules. That Rule only allows Court to dismiss for want of prosecution but does not empower a party to move a Court to do so, they argue. They rely on Edward Juma v Peter Ndirangu [2007] eKLR. That case says that the “Court will not normally exercise its discretion where a litigant seeks the exercise of such discretion on the wrong provisions of the law….”

b) Secondly, the Appellants claim that Article 50 of the Constitution gives them a right to hearing and that the dismissal of their suit was a denial of that right.

c) Thirdly, the Appellants argue that they explained the delay in prosecuting the case. First, they say that they could not prosecute it between 11th December, 2016 and 19th October, 2017 because the High Court had issued an injunction against all land-related matters from being heard in Magistrate’s Court. Second, the Appellant’s lawyer says that he had lost contact with his client.

7. Order 17, Rule 2 is entitled “Notice to show cause why suit should not be dismissed.” It’s three sub-rules read as follows:

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

8. It is readily obvious from the text that Sub-rule 1 empowers the Court to dismiss a suit on its own motion if it lies inactive for more than one year. Sub-rule 3, on the other hand, permits a party to move the Court for dismissal for the same reason.

9. In its Application before the Trial Court, the 1st Respondent cited Order 17, Rule 2(1); Order 51, Rule 2 of the Civil Procedure Rules and section 3A of the Civil Procedure Act.

10. For technical perfection, the Application should have been brought under Order 17, Rule 2(3). Order 51, Rule 2 has nothing to do with the Application. However, as the Respondents point out, this technical deficiency does not go to the root of the Application. It is obvious that the Appellant’s Counsel well understood the Application he was facing and, indeed, he diligently opposed it. He did not raise the issue of form at all during its hearing in the Trial Court.

11. As for the Trial Court’s reliance on Order 17, Rule 2(1) in its Ruling, that is explained by the fact that Order 17, Rule 2(3) cross-references Order 17, Rule 2(1) as providing the substantive standard to be used.

12. In any event, as various cases have now interpreted Article 159 of the Constitution; Section 3A of the Civil Procedure Act and Order 50, Rule 10(2) of the Civil Procedure Rules, wrong intitulement of an Application; citation of wrong provisions of the law and the like do not, without a showing of prejudice, defeat well-founded claims or Applications. For this reason, this ground of appeal must fail.

13. I do not need to belabor the second ground raised by the Appellants: that they have a right to a hearing. Yes, they do. However, their right to a hearing does not extend to the extent of indefinitely saddling the Respondents with a suit without taking any action for an inordinate period of time without justifiable excuse. The tautological position that a party has a right to a hearing is not an absolutist ground to defeat a well-placed application for dismissal for want of prosecution.

14. Turning to the third and more substantive point, the question is whether the Appellants showed sufficient cause why their suit should not be dismissed. They say they did. The Respondents say they did not.

15. Our case law had given helpful guidelines on determining this question. In Salkas Contractors Ltd –v- Kenya Petroleum Refineries: Mombasa C.A. No.250 of 2003 (UR) the Court of Appeal held that a party seeking a suit to be dismissed for want of prosecution must show the following:

(i) That there has been inordinate delay. It would be highly undesirable and indeed impossible to attempt to lay down a tariff so many years or more on one side of the lien and a lesser period on the other. What is or is not inordinate delay must depend on the facts of each particular case. These vary infinitely from case to case but it should not be too difficult to recognize inordinate delay when it occurs.

(ii) That this inordinate delay is inexcusable. As a rule until a credible excuse is made out the natural inference would be that it is inexcusable.

(iii) That the Defendants are likely to be seriously prejudiced by the delay. This may be prejudice at the trial of issues between themselves and the Plaintiff or between each other or between themselves and third parties. In addition to any inference that may properly be drawn from the delay itself, prejudice can sometimes be directly proved. As a rule the longer the delay the greater the likelihood of prejudice at the trial.

16. In the present case, the Appellants took no action in the case for a period of more than three-and-a-half years. There can be no question that that is an inordinate delay. Was the delay excusable?

17. Appellants give two reasons for the delay. The first one is that they took no action because they were apprehensive that the Court had no jurisdiction pending the determination of the Malindi Case.

18. I have looked at the Plaint and the nature of the claim and the remedies sought. I have no fear of contradiction in concluding that the underlying claim is not one related to land. The claim is based on what the Appellants claimed was illegal refusal to accept their tea at the Tea Factory. Period. The remedy is one for damages for the tea that was wasted as a result of the alleged illegal refusal. Period. No amount of intellectual gymnastics and can save the Appellants from the conclusion that the claim they presented had nothing to do with land. Consequently, the given reason that they were awaiting resolution of the Malindi Case is pre-textual and un-availing.

19. The second reason the Appellants present is captured in the following two paragraphs in the Replying Affidavit of Njoroge Kugwa, their advocates in opposition to the Application for dismissal:

4. That for a long time I have lost contact with the Plaintiffs herein and I have been unable to obtain further instructions in pursuit of this suit.

5. That nevertheless I am and undertake (sic) to continue making frantic efforts to locate the clients and obtain the requisite instructions and thereafter respond fully to this Application.

20. The Appellants insist that this was a good reason to keep the suit alive. It is important to restate the delay in question. The Appellants took no action in the case for three years, six months and six days or 183 weeks and 5 days or 1286 days. Loss of contact with a client for that period of time cannot constitute excusable reason for this kind of delay. Keeping a suit hanging over the heads of Defendants for that kind of period for this kind of a reason is simply not justifiable.

21. Consequently, it was, therefore, quite in order for the Learned Trial Magistrate to refuse to exercise her discretion to set the suit down for hearing. The Appellants simply did not show sufficient excusable cause for the delay and the order for dismissal was the correct one.

22. The upshot, then, is that the Appeal herein is dismissed with costs.

23. Orders accordingly.

Dated and delivered at Kiambu this 4th day of June, 2018.

........................

JOEL NGUGI

JUDGE