[2022] KEHC 15312 (KLR)

Shaw v Pike & another (Civil Suit 241 of 2018) [2022] KEHC 15312 (KLR) (Civ) (10 November 2022) (Ruling)

Neutral citation: [2022] KEHC 15312 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Suit 241 of 2018

CW Meoli, J

November 10, 2022

Between

Virginia Wangui Shaw

Plaintiff

and

William Pike

1st Defendant

Radio Africa (K) Limited

2nd Defendant

Ruling

1. The motion dated March 15, 2021 by William Pike and Radio Africa (K) Limited, the 1st and 2nd Defendant/Applicants herein seeks that the suit by Virginia Wangui Shaw, the Plaintiff/Respondent herein be dismissed for want of prosecution. The motion is expressed to be brought under Section 1, 1A, 3 & 3A of the Civil Procedure Act (CPA), Order 17 Rule 2 (3) and Order 51 Rules 1 of the Civil Procedure Rules (CPR), among others. The grounds on the face of the motion are amplified in the supporting affidavit sworn by Linda Mutisya, a Legal Officer of the 2nd Defendant.

2. The gist of her affidavit is that the instant suit was filed by the Plaintiff on October 16, 2018; that the Defendants entered appearance and filed defence on November 12, 2018 and January 11, 2019 respectively; and that no step has been taken in progressing the matter for a period of over one year since November 5, 2019 when the matter was last in court, which inaction amounts to an abuse of court process. She concludes by deposing that on account of the foregoing it is just and expedient that this suit be dismissed with costs for want of prosecution.

3. The Plaintiff opposes the motion through a replying affidavit dated March 29, 2021. Reciting the history of the matter, she attributes some delay to the delayed prosecution of the motion by the erstwhile counsel for the Defendants seeking to cease acting and that it was not until July 14, 2020 that her counsel was served with a notice of appointment by the Defendants’ current counsel. By way of further reasons for delay, she deposes that the Defendants are yet to comply with the mandatory provisions of Order 7 Rule 5 of the Civil Procedure Rules (CPR) to enable the matter to be set down for pretrial directions and that due to the onset of the Covid-19 Pandemic court services and registry operations were severely affected before migration to virtual platforms. And she asserts to have made necessary efforts to keep up with her case and is still interested in prosecuting it to conclusion.

4. The motion was canvassed by way of written submissions. Counsel for the Defendants anchored her submissions on the provisions of Order 17 Rule 2 of the Civil Procedure Rules and emphasized the pertinent depositions in the supporting affidavit. In addition, she pointed out that the Plaintiff is yet to comply with the provisions of Order 11 of the CPR or have pre-trial directions and has offered no reasonable explanation for the delay. Counsel went on to cite the decisions in Nzoia Sugar Comoany Limited v West Kenya Sugar Limited [2020] eKLR and Utalii Transport Company Limited & 3 Others v NIC Bank Limited & Another [2014] eKLR to reiterate the principles undergirding an application of this nature. Arguing that on the facts of the matter the delay herein is inordinate inexcusable, counsel called to aid the decisions inMoses Mwangi Kimani v Shammi Kanjirapparambil Thomas & 2 Others [2014] eKLR, Jeremiah Ng’ayu Kioni v Standard Media Group Limited & 11others [2015] eKLR and Argan Wekesa Okumu v Dima College Limited & 2others [2015] eKLR. She reiterated that the onus is on the plaintiff to progress her suit but she has not given a reasonable explanation for the delay in prosecuting the matter.

5. Asserting that the delay is abuse of the court process and prejudicial to the Defendants, counsel restated the decision in Argan Wekesa Okumu (supra) and stated that delayed prosecution of cases clogs the system of administration of justice to the detriment of other deserving litigants; that the continued pendency of the matter prejudices the Defendants’ reputation, escalates legal costs; and prejudices the possibility of a fair trial as witnesses may become unreachable. In conclusion while placing reliance on the decision in Gideon Sitelu Konchella v Daima Bank Limited [2013] eKLR it was submitted that since the Plaintiff has lost interest in the matter, dismissal of the suit will not occasion her any prejudice.

6. On the part of the Plaintiff, counsel anchored his submissions on the decision in Ivita v Kyumbu [1984] KLR 441. He reiterated the prior events in the matter as narrated in the replying affidavit and asserted that the Plaintiff has proffered a satisfactory reason for the delay while the Defendants have not demonstrated the prejudice, they are likely to suffer if the suit were to proceed for hearing. The court was urged to dismiss the motion and set the matter down for pretrial directions.

7. The court has considered the material canvassed in respect of the motion. Order 17 Rule 2 of the Civil Procedure Rules (CPR) echoes and gives meaning to the constitutional injunction in Article 159(2) (b) of the Constitution and the overriding objective in Section 1A and 1B of the Civil Procedure Act for the expeditious dispensation of justice. Order 17 Rule 2 of the CPR provides inter alia 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)……………….(6)………………. ”

8. The locus classicus on the above rule is the case of Ivita v Kyumbu (1984) KLR 441 which has been followed in a long line of authorities, including those cited by the parties herein. The Court of Appeal restated the principles enunciated therein in the case of Rajesh Rughani v Fifty Investments Limited & Another [2016] eKLR by stating that:“The test for dismissal of a suit for want of prosecution is stated in the case ofIvita -v- Kyumbu (1984) KLR 441). The test was expressed as follows:The test is whether the delay is prolonged and inexcusable and if it is, whether justice can be done despite such delay. Justice is 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 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.”See also Argan Wekesa Okumu (supra).

9. The history of this matter is well documented. The Plaintiff’s suit was filed on October 16, 2018 relating to a cause of action allegedly arising on March 17, 2018. The Defendants in turn entered appearance and filed the statements of defence on November 12, 2018 and January 11, 2019 respectively. On July 16, 2019 the matter came up for pre-trial directions before the Deputy Registrar when counsel then appearing for the Defendants, intimated to the court to have filed an application seeking to cease acting. The Deputy Registrar directed that the motion to cease acting be canvassed in two weeks, failing which the Plaintiff be at liberty to fix a pre-trial date for the matter. On August 21, 2019 the Plaintiff proceeded to fix a hearing date for the motion for November 5, 2019. However, none of the parties’ advocates attended court on that date. Subsequently, on December 23, 2019 a notice of appointment of new advocates for the Defendants was filed. Thereafter no further action was taken by the Plaintiff and the Defendants proceeded to file the instant motion on March 15, 2021 seeking to dismiss the suit for want of prosecution.

10. The Plaintiff’s explanation for this period of delay is unconvincing and unsubstantiated. It seemed to the court that the Plaintiff sought to cast blame on the Defendants and COVID-19 pandemic for her own apparent tardiness. There was no bar to her progressing her case even if the Defendants had somehow failed in some way to move any process forward; the Plaintiff owns the case in any event. That the COVID-19-19 pandemic hampered for some time the full operations of the court cannot be disputed. However, it is a fact that by end of 2020 court operations had gone online and virtual proceedings were possible. Thus, while physical access to courts and registries was indeed limited, parties could correspond with the court and file processes electronically. This means that were the Plaintiff desirous of progressing her case, she could have. The record shows no evidence of any such desire.

11. As the defendant has asserted, the onus is always on the plaintiff to take steps to progress her case. The hiatus of more than three years since the matter was last in court has not been inadequately explained, is prolonged and almost inexcusable. That the defendants are prejudiced by the delay does not appear farfetched. At a time when courts are deluged by heavy caseloads, no party ought to be allowed to litigate at leisure to the detriment of the adverse party, and this court agrees with the defendants’ assertion that such conduct would amount to an abuse of the process of the court. Worse, as observed in Ivita’s case, extended delay impacts the possibility of a fair trial being eventually held as documents and witnesses may become unavailable, while memories of such witnesses may fade over time. However, in that case the court also added the rider that:“Thus, even if the 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, the action will not be dismissed but it will be ordered that it be set down for hearing at the earliest available time. It is a matter in the discretion of the court.”

12. Despite the plaintiff’s apparent slovenly conduct, it appears that a fair trial could still be possible in this case if the matter were to proceed to hearing without further delay, which appears feasible given the nature of the dispute and the evidence proposed. As such, there would be no further plausible or foreseeable reason for delay once the matter undergoes pretrial directions and subsequently scheduled for hearing.

13. The Court of Appeal in Richard Ncharpi Leiyagu v Independent Electoral and Boundaries Commission & 2others [2013] eKLR stated: -“The right to a hearing has always been a well-protected one in our Constitution and is also the cornerstone of the rule of law. This is why even if the courts have inherent jurisdiction to dismiss suits, this should be done in circumstances that protect the integrity of the court process from abuse that would amount to injustice and at the end of the day, there would be proportionality.”

14. The right of the Plaintiff to be heard on the merits is a constitutional right that ought to be given effect as far as is reasonably possible, practicable, and just. Corollary to that however is the Defendants’ right to have the suit to which they have been dragged determined justly and expeditiously in keeping with the overriding objective. Juxtaposing the competing rights of the parties at this stage, the court is of the view that in the interest of justice, the Plaintiff ought to be given opportunity, upon conditions, to prosecute her suit. Thus, while declining the Defendants’ motion, the Court directs the Plaintiff to prosecute her suit to conclusion within 9 (nine) months of today’s date, failing which it will stand automatically dismissed with costs, for want of prosecution. The costs of the motion dated March 15, 2021 are awarded to the Defendants in any event.

DELIVERED AND SIGNED ELECTRONICALLY AT NAIROBI ON THIS 10TH DAY OF NOVEMBER 2022. C.MEOLIJUDGEIn the presence of:For the Defendant/Applicants: Ms. GichoyaFor the Plaintiff/Respondent: Mr. Gathuri h/b for Mr. GitonyaC/A: Carol