[2004] KEHC 2115 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI COMMERCIAL COURTS

CIVIL CASE NO.33 OF 2002

PAUL MUHORO KIHARA :::::::::::::::::::::::::::::::::::::::::::::::::::PLAINTIFF

VERSUS

BARCLAYS BANK (K) LIMITED ::::::::::::::::::::::::::::::::::::DEFENDANT

RULING

I have before me a Notice of Motion dated 14th April, 2004 brought by the Defendant under Order XVI Rule 5 and Order L Rule 1 of the Civil Procedure Rules. The Motion on Notice seeks one main relief, that the suit against he Defendant be dismissed for want of prosecution.

The Defendant’s case is that the suit was originally filed on 3rd September, 1998 at the High Court Central Registry but was subsequently transferred to this division and allocated the present number. The suit is therefore nearly 6 years old. The Plaintiff had sought a temporary injunction in the suit which application for injunction was dismissed on 6th February 2001. This was the last step taken in the suit. The Plaintiff has since failed and/or neglected to set down this suit for hearing and fair trial now will not be heard because of the delay in prosecuting the suit. Reliance was placed on the decision of the Court of Appeal in the case of Mukisa Biscuit Manufacturing Co. Ltd –v- West End Distributor Ltd (l969) E.A. 696 for the proposition that it is the duty of a Plaintiff to bring his suit to early trial, and he cannot absolve himself of this primary duty by saying that the Defendant consented to the position. Further reliance was placed upon the case of Fitzpatrick –v- Batger & Co. Ltd ( l967) 2 ALL E.R. 657 where Lord Salmon observed that:

“It is of the greatest importance in the interests of justice that these actions should be brought to trial with reasonable expedition.”

There was also reliance upon the case of Peter Mwedia Muinami –v- Barclays Bank (K) Ltd: Nairobi HCCC No.1046 of 1999 (unreported) in which my brother Emukule J. held that a delay of over 4 years was not only inordinate but also inexcusable.

The Plaintiff’s Counsel squarely blamed himself for the delay in prosecuting this case. It was explained that this case is one in a series of cases filed against the Defendant by its former employees. One such case is Nairobi HCCC No.2049 of 1998:-Francis Cyrus Mugo –v- Barclays Bank (K) Ltd which is part heard before Mr. Ringera J. as he then was. The Plaintiff’s counsel is treating the case before Ringera J. as a test case and its decision will determine the way forward for this case. Counsel was candid enough to admit that he has not sought his client’s instructions and has also not alerted his counterpart. He further freely admitted that since his appointment as Assisting Counsel to the Goldenberg Commission in February 2003 he had not found time to prosecute this case. Reliance was placed upon the decision in the case of Frederick G.K. Waithaka –v- Thuo Kamau and Another; Nairobi C.A. Civil Application No. NAI 71 of 1994 (unreported) which is a decision on extension of time to file an appeal to the Court of Appeal. The Court observed at page 4 of the Ruling that:

“True it is that in appropriate circumstances the mistakes or misdeeds of an advocate should not be visited upon his innocent client …”

The Plaintiff’s Advocate admits the delay to prosecute this case of about 2 ½ years since the dismissal of the injunction application but pleads to be given a chance to prosecute the same.

I have now considered the application, the affidavits filed, the authorities cited and the submissions of Counsel. Having done so I take the following view of the matter. Counsel for the Plaintiff has explained the cause of delay. He is in fact the cause of delay in prosecuting this case. I ask myself whether or not in the circumstances of this case I should visit Counsel’s mistake on his client. I have received guidance from the observations made by Cheson J. as he then was in Ivita –v- Kyumbu (l984) K.L.R. 441. He said at page 449as follows:

“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 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 however satisfy the Court that he 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 C ourt 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 and that justice can still be done to the parties notwithst anding 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.”

Cheson J. was dealing with a situation where a Plaintiff after filing suit and pleadings had closed in May l971 took no step for 2 ½ years before setting the case for hearing. Even when the Plaintiff took a hearing date ex-parte and having served the Defendant’s Counsel he unilaterally requested for the removal of the case from the hearings list. The period Cheson J. was therefore considering was about 4 years. He dismissed the suit but kept into focus the relevant test.

I have also been guided by the following passage from Halsbury’s Laws of England, 4th Edition Vol.27, paragraph 448:

“The purpose to dismiss an act ion for want of prosecution, without giving the Plaintiff the opportunity to remedy his default will not be exercised unless the Court is satisfied: () that the default has been intentional and contumelious, or (ii) that there has been prolonged or inordin ate and inexcusable delay on the part of the Plaintiff or his Lawyers and that such delay will give rise to a substantial risk that it is not possible to have a fair trial of the issues in the action or is such as is likely to cause or to have caused serio us prejudice to the Defendants either as between themselves and the Plaintiff or each other or between them and third parties. The power to dismiss an action for want of prosecution, other than in a case of contumelious conduct by the Plaintiff, should no t be usually exercised within the currency of any relevant limitation period, and, since the Plaintiff may avail himself of his right to issue a fresh writ the non expiry of the limitation period is generally a conclusive reason for not dismissing an action that is already pending.”

Now applying the principles stated in the above quotations to the circumstances of this cause, I have found that the period of delay of 2 ½ years is long but it is not in the circumstances of this case inordinate and inexcusable. The explanation offered by Counsel for the Plaintiff is not unreasonable. I have also not found that the Plaintiff has lost interest in this case. The Defendant has not demonstrated that it will suffer prejudice if this suit is not dismissed.

In the result, and in the light of the peculiar circumstances of this case I decline to exercise my discretion in favour of the Defendant and hereby dismiss its application dated 14th April, 2004. As the application was altogether not without merit I order that costs be in the cause. I further direct that immediate steps be taken towards preparation of this suit for trial.

Orders accordingly.

DATED AND DELIVERED AT NAIROBI THIS 15TH DAY OF

OCTOBER, 2004.

F. AZANGALALA

AG. JUDGE

Read in the presence of: