[2017] KEHC 10070 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

COMMERCIAL & TAX DIVISION

CIVIL SUIT NO. 99 OF 2015

RUTH WACHERA KARANJA..............................................................PLAINTIFF

VERSUS

JAMES MUIRURI NG'ANG'A....................................................1ST DEFENDANT

JOSEPHINE WAITHIRA NG'ANG'A.........................................2ND DEFENDANT

VALPRO TOOLS & GENERAL SUPPLIES LTD....................3RD DEFENDANT

KENYA COMMERCIAL BANK LIMITED..................................4TH DEFENDANT

RULING

[1]Before the Court for determination is the Notice of Motion dated 27 April 2017. It was filed herein on 9 May 2017 by the 4th Defendant under Order 17 Rule 2(3) of the Civil Procedure Rules, 2010, for orders that the Plaintiff's suit be dismissed with costs for want of prosecution and that the costs of the application be provided for. The application was based on the grounds that, for a period exceeding one year now, the Plaintiff has not made any application nor taken any step towards the prosecution of this suit; and that the continued pendency of this suit, when no active steps are being taken to prosecute it, is prejudicial to the 4th Defendant.

[2] The application was supported by the affidavit of the Head, Legal Services of the 4th Defendant, Bonnie Okumu, sworn on 27 April 2017, in which he averred that the suit was commenced by way of a Plaint dated 27 February 2015 and filed on 28 April 2015, in which the Plaintiff sought against the 4th Defendant, General Damages for negligence, breach of trust and duty for allowing fraudulent transactions by the 1st and 3rd Defendants. It was further averred by the 4th Defendant that it filed its Defence on 2 July 2015, whereupon a Reply thereto was filed by the Plaintiff on 22 July 2015; and that since then no steps have been taken to ensure the prosecution of this suit to conclusion.

[3] It was therefore the contention of the 4th Defendant that there has been inordinate delay on the part of the Plaintiff in preparing this suit for trial; and that it is therefore apparent that the Plaintiff no longer has any interest in prosecuting the same. It was further averred by the 4th Defendant that the continued pendency of this suit is prejudicial to it, and that it continues to suffer the anxiety of defending a suit in which the Plaintiff is not taking any serious steps to prosecute, yet the risk of losing potential witnesses and evidence on the matters in dispute due to lapse of time is quite real. In the circumstances, the 4th Defendant urged that the suit be dismissed with costs for want of prosecution.

[4] The Plaintiff opposed the application vide her Replying Affidavit sworn and filed on 24 May 2017. Her explanation was that, while the 4th Defendant filed its Defence upon being served with Summons to Enter Appearance and Plaint, the 1st, 2nd and 3rd Defendants did not; and that it took a while before her request for Interlocutory Judgment was processed and recorded. It was further averred by the Plaintiff that subsequent attempts to set down the suit for Case Management Conference were not successful as the court file could not be traced each time her Advocates visited the Court Registry for that purpose.

[5] The Plaintiff further averred that, having failed to take reasonable steps to have the suit fixed for hearing or at the very least to confirm the availability of the file, it was not open to the 4th Defendant to seek the dismissal of this suit; and that if there was any delay then the same could only be blamed on her erstwhile Advocates, M. Mutinda & Associates, Advocates. She urged the Court to find that the prejudice occasioned to the 4th Defendant is not comparable to the loss she would incur should her suit be dismissed as proposed by the 4th Defendant. The Plaintiff accordingly urged for the dismissal of the application with costs, contending that it lacks merit.

[6] The application was urged by way of written submissions which were filed herein by Learned Counsel for the parties on 18 August 2017 and 9 October 2017, respectively. In its written submissions, the 4th Defendant proposed only one issue for determination, namely: whether the Plaintiff has taken an inordinate period in prosecuting the suit. Counsel relied on the cases of Ivita vs. Kyumbu [1975] eKLR in urging the Court to find that a period of 21 months of inaction that had elapsed by the time the instant application was filed, was inordinate. Counsel also cited the cases of Bandari Co-operative Savings & Credit Society Limited vs. Seven Seas Technologies (K) Ltd & Another [2014] eKLR and John Joseph Kamotho vs. Nation Newspapers & Another [2007] eKLR to support the proposition that it is the responsibility of the Plaintiff to fix his case for hearing.

[7] In support of the contention by the 4th Defendant that the delay has been prejudicial to it, the cases of Joseph arap Ng'ok & Another vs. EABS Bank Limited [2015] eKLR and Nilani vs. Patel [1969] EA 341 were relied on for the submission that delay of any kind must be deprecated, and that every year that passes prejudices the fair trial, granted that witnesses may have died, documents may have been misplaced, lost or destroyed and the memory of witnesses tend to fade. Accordingly, Counsel for the 4th Defendant urged the Court to find merit in the Notice of Motion application dated 27 April 2017 and allow it with costs.

[8] The Plaintiff, on the other hand, was of the conviction and urged the Court to the viewpoint that the 4th Defendant has failed to demonstrate that it had met the test for the exercise of the Court's discretion in such matters as laid down in Ivita vs. Kyumbu (supra). He also relied on the case of Utalii Transport Co. Ltd & Others vs. NIC Bank Ltd & Another [2014] eKLR. She further submitted that this suit involves other Defendants who are independent from the 4th Defendant, and that the case involves a colossal sum of money and therefore that dismissing it would permanently lock her out of the seat of justice. The Plaintiff urged the Court to ensure the ends of substantive justice are met by dismissing the instant application with costs, so as to be given an opportunity to prosecute this suit to its logical conclusion.

[9] Order 17 Rule 2 of the Civil Procedure Rules, which the provision under which 4th Defendant brought the instant application, 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.

[10] And as was well elucidated by Lord Denning MR in the case of Allen vs. Sir Alfred McAlpine [1968] All E.R 543at 546,any delay in the administration of justice is to be deprecated. He stated thus:

"The delay of justice is a denial of justice...all through the years men have protested at the law's delay and counted it as a grievous wrong, hard to bear...To put right this wrong, we will in this court do all in our power to enforce expedition; and if need be, we will strike out actions when there has been excessive delay. This is a stern measure; but it is within the inherent jurisdiction of the court, and the rules of court expressly permit it."

[11]Thus, in Ivita vs Kyumbu [1975] eKLRthe principle was propounded that each case must be considered and decided on its own facts, on the basis of the following guiding principles:

"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 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 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 before the court 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 the action will not be dismissed, but it will be ordered that it be set down for hearing at the earliest available time."

[12]In the light of the foregoing, the key issue for my determination herein is whether there has been inordinate delay in the prosecution of this suit. In this connection, I have given due consideration to the application, the affidavits filed in respect thereof and the submissions made by Learned Counsel in the light of the pleadings and the proceedings to date. There appears to be no dispute that the Defendants were duly served with the Plaint and Summons to Enter Appearance; and that while the 4th Defendant did file a Memorandum of Appearance and Defence, the other Defendants did not. Accordingly, pleadings closed, for the purposes of the 4th Defendant, 14 days after service by the Plaintiff of her Reply to the Defence of the 4th Defendant.

[13] There is however no indication as to when the Reply to Defence was filed. The Supporting Affidavit merely states that the Reply was filed on 22 July 2015. More importantly, although there is a Request for Judgment dated 29 May 2015 seeking that Interlocutory Judgment be entered against the 1st, 2nd and 3rd Defendants, it appears that the same is yet to be acted upon by the Deputy Registrar. For these reasons, I am not satisfied that the Plaintiff is entirely to blame for the inaction, or that the delay is inexcusable.

[14] In the premises, I would dismiss the Notice of Motion dated 27 April 2017, but direct that the costs thereof be in the cause; and that the matter be accordingly progressed towards hearing and determination on the merits.

Orders accordingly.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 6TH DAY OF DECEMBER 2017

OLGA SEWE

JUDGE