[2022] KEHC 3068 (KLR)

Ritz v Standard Group PLC (Civil Suit 262 of 2016) [2022] KEHC 3068 (KLR) (Civ) (1 July 2022) (Ruling)

Neutral citation: [2022] KEHC 3068 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Suit 262 of 2016

JK Sergon, J

July 1, 2022

Between

Marco Ritz

Plaintiff

and

Standard Group PLC

Defendant

Ruling

1. The defendant/applicant in this instance has brought the Notice of Motion dated February 21, 2021 which is supported by the grounds set out in its body. The applicant sought for an order to the effect that the appellant’s/respondent’s appeal be dismissed for want of prosecution with costs.

2. The application is supported by the affidavit of one Millicent Ngetich who has described himself as the head of legal for the defendant.

3. Going by the record, the Motion stands unopposed in view of the fact that, the plaintiff/respondent did not put in any response to the Motion or participate at the hearing thereof.

4. At the hearing of the Motion, the court gave directions for the plaintiff to respond and the motion to be disposed of by way of written submissions. At the time of writing this ruling no party had filed submissions.

5. A brief background of the matter is that, the plaintiff/ respondent filed the suit against the applicant by way of the plaint dated 27th September, 2016 and sought various reliefs including general damages, arising out of defamatory publications allegedly made by the applicant concerning the plaintiff. The applicant filed a statement of defence in the suit.

6. Returning to the merits of the instant Motion, the applicable provision touching on the dismissal of suits for want of prosecution is Order 17, Rule 2 (1) and (3) of the Civil Procedure Rules. Rule 2(1) relates to dismissal of suits upon issuance of a notice to show cause by the court. The applicant has come under Rule 2 (3) which provides that:“Any party to the suit may apply for its dismissal as provided in sub-rule 1. ”

7. The guiding principles in determining an application seeking the dismissal of a suit for want of prosecution were discussed by the court in the case of Moses Mwangi Kimari v Shammi Kanjirapparambil Thomas & 2 others [2014] eKLR and are as follows:i.Whether there has been inordinate delay in the prosecution of the suit by the plaintiff;ii.Whether the delay is intentional and thus inexcusable;iii.Whether the plaintiff has offered a reasonable explanation for the delay;iv.Whether the delay is an abuse of the court process;v.Whether the delay prejudices the defendant(s);vi.The prejudice that will be visited upon the plaintiff; andvii.Whether justice can still be done notwithstanding the delay.

8. Under the first principle, the applicant asserts that there has been a prolonged and inordinate delay for over 17 months have lapsed and the plaintiff has not taken any further step to prosecute the suit since the October 1, 2019.

9. Since then, two (2) years have passed without any action in the suit by the plaintiff. The question therefore remains: does this constitute inordinate delay?

10. In order to answer the above question, I am obliged to look into the nature and circumstances of the suit, which brings me to the second, third and fourth principles that I will address hereinbelow.

11. In her affidavit, the applicant states that it is unfair and unjust for the plaintiff to endlessly subject the defendant to anxiety of defending a suit that is not being prosecuted and that it is in the interest of justice that litigation must come to an end.

12. As earlier noted, the plaintiff has given no explanation at all for the delay in prosecuting the suit, which inclines me to find that the delay in this instance is inordinate and inexcusable.

13. The fifth and sixth principles touching on prejudice were not discussed by either of the parties herein. That notwithstanding, the courts have previously held that in any application for dismissal, an applicant is expected to demonstrate in specific terms the prejudice he, she or it stands to suffer. For reference purposes, I draw from the court’s analysis in the case of Mwangi S. Kimenyi v Attorney General & another [2014] eKLR thus:“…the Defendant must show he suffered some additional prejudice which is substantial and results to 1) impending fair trial; 2) aggravated costs; or 3) specific hardships to the Defendant. It must also be shown that the delay has worsened the Defendant’s position in the suit. It will not, therefore, be sufficient to just make a general assertion that you will suffer prejudice without showing the particular prejudice as spelt out herein above.”

14. In the absence of any material or arguments to that effect, I am not satisfied that the applicant has demonstrated that he will suffer substantial prejudice if the order for dismissal is denied.

15. Moreover, upon establishing that the plaintiff’s cause of action is in the nature of defamation and for which he is seeking to recover various reliefs from the High Court, it follows that should his suit be dismissed prematurely at this stage, the plaintiff stands to lose his day in court which may likely impede his right to substantive justice.

16. Concerning the seventh principle, the applicant did not bring any material or evidence to show the manner in which he stands to suffer injustice should the suit be sustained.

17. From the pleadings, I am able to tell that the suit was lodged in 2016 and is therefore a fairly recent case. It is also noted that both parties have filed their pre-trial documents. In the premises, I am satisfied that justice can still be done notwithstanding the prolonged delay. Moreover, courts of law are also courts of justice and I am duty bound to do substantive justice to parties.

18. The upshot is that the Motion is hereby dismissed with each party bearing its own costs.

19. However, to avoid the matter procrastinating further I give the following directions:i.The plaintiff shall prosecute his suit within 120 days from this date, failing which the suit shall be dismissed with costs.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 1ST DAY OF JULY, 2022. J. K. SERGONJUDGEIn the presence of:………………………………. for the Plaintiff………………………………. for the Defendant