[2004] KEHC 1276 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI COMMERCIAL COURTS

CIVIL CASE NO. 2363 OF 1998

WERROT & COMPANY LIMITED…………........…..….1ST PLAINTIFF

ELECTRIC MOTORS TRANSFORMERS LTD ..........….2ND PLAINTIFF

GIAN SINGH BADHAN …….…………………....…....…..3RD PLAINTIFF

KIRPAL SINGH BADHAN …..……………….........…..…..4TH PLAINTIFF

VERSUS

ANDREW DOUGLAS GREGORY ……………..….…1ST DEFENDANT

BRIAN CHARLES D’SOUZA………………….….….2ND DEFENDANT

STANDARD CHARTERED BANK KENYA LTD ........3RD DEFENDANT

RULING

The 3rd defendant has moved this court by way of Notice of Motion dated 2nd September 2004 brought under Order XVI Rule 5 of the Civil Procedure Rules and Section 3 A of the Civil Procedure Act. The 3rd defendant is seeking the dismissal of this suit for want of prosecution.

The application is supported by the following grounds: -

(1) That this suit was instituted vide a plaint filed on 27th October 1998.

(2) That the plaintiffs last filed a chamber summons dated 7th February 2001, and a ruling was delivered on 22nd May 2001.

(3) That the plaintiffs have failed to prosecute the suit expeditiously.

The submission by the 3rd defendants and the supporting affidavit bring out the following facts.

The plaintiff’s suit was filed together with a chamber summons for an injunction on 27th October 1998 and to date that chamber summons has never been heard. The plaintiffs filed another application on 27th February 2001 whose ruling was delivered on 22nd May 2001 and to date the plaintiff’s have not taken step in the prosecution of this suit and the defendant accordingly believes that the plaintiff is not interested in prosecuting this suit and in the interest of justice the same should be dismissed.

The 3rd defendant’s three key witnesses are no longer in the 3rd defendant’s employment and if the suit is allowed to subsist it will be at the prejudicial of the 3rd defendant.

Pleadings closed on 31st December 1998 and since then the plaintiff has not drafted issues nor the list of documents, which is evidence that the plaintiff has done nothing to prepare for trial.

The 3rd defendant relied on the following authorities: -

· ET MONKS & CO LTD – V – EVANS (1985) KLR 584

· FITZA PATRICK – V BATGER & CO LTD (1967) 2 ALLER 657.

· JOASH SOITA & 30 OTHERS – V – AFROLITE INDUSTRIES LTD HCCC NO 2007 OF 1994 (unreported)

· PAXTON – V – ALLSOPP (1971) 3 ALL ER 370

Which were decided on the basis that where there had been in ordinate delay, even where the fault is of the legal adviser, the case should be dismissed for want of prosecution.

The 3rd defendant also relied on the case, VICTORIA CONSTRUCTION CO. – V - A.N. DUGGAL (1962) EA 697. He quoted the first holding, that: -

“Only a step taken on the record, such as an interlocutory application, could amount to such a step as is envisaged by Order XVI rule 6; accordingly the reference to informal arbitration was not a step taken with a view to proceedings with the suit.”

The 3rd defendant relied on this latter case to disprove the position taken by the plaintiff that there were negotiations going on between the parties and hence why a date was not fixed. The 3rd defendant argued even if there were negotiations that did not amount to a step as envisaged by Order 16.

The Plaintiff in the replying affidavit for reasons not explained mistakenly stated that the last action in this suit was a ruling delivered on 22nd May 2002; in fact that ruling was delivered on 22nd May 2001.

On behalf of the Plaintiff it was argued that the plaintiff was represented by two previous advocates who neither contacted the plaintiff nor informed him about the suit. The plaintiff therefore operated on the misguided belief that the advocates were taking appropriate action; accordingly the plaintiff said that the mistake of his advocate should not be visited on him.

The 3rd plaintiff then deponed that for the better part of the year 2004, the plaintiff and the advocates for the 3rd defendant were in contact negotiating the settlement of the disputes between the parties. To prove this the plaintiff annexed a letter from the said advocates dated 12th August 2004.

The plaintiff sought the exercise of the discretion of this court in favour of the plaintiff adding that the suit involved deep issues.

It is important to keep in perspective that the period of inactivity in this case is over 3 years and that is indeed an in ordinate delay. Indeed I am not sure why this suit escaped the scrutiny of the court registry for dismissal under order 16 rule 6.

The 3rd plaintiff was heard to argue that he was of the view that his advocates were taking appropriate action during those years of silence. Although I do not accept his argument that the fault of his advocates should not be visited on him I believe that it is not true that he was ignorant of the position of his suit. The court record reveals that on 22nd August 2003 the firm of Simani & Associates perused the court file on behalf of the 3rd plaintiff, so it is clear that at least August 2003 the 3rd plaintiff knew that no action had been undertaken by his advocates since the ruling of 22nd May 2001.

Apart from my finding that the delay of 3 years is in ordinate and inexcusable I also find that to allow this suit to subsist would be prejudicial to the 3rd defendant who would have difficulty in persuading three key witnesses to come to court, now that they are no longer in its employment.

For the reasons stated herein above I am of the view that the orders sought are merited.

The orders of this court at: -

(a) The plaintiff’s suit herein is hereby dismissed for want of prosecution

(b) That the costs of the application dated 2nd September 2004 and of the suit hereof are awarded to the defendant hereof.

Dated and delivered this 18th day of November 2004.

MARY KASANGO

AG JUDGE