[2020] KEHC 3808 (KLR)
The court found that while there was a delay of approximately one and a half years in prosecuting the suit, this delay was not inordinate given the circumstances. Both plaintiffs and defendants shared responsibility for non-compliance with court directions, and the nature of the evidence sought (televised news...
Source-derived case information.
- Citation
- [2020] KEHC 3808 (KLR)
- Parties
- Plaintiff: Wycliff Ambetsa Oprangya; Plaintiff: Philip Mseve Kutima; Defendant: Citizen Television; Defendant: Royal Media Services; Defendant: Faiza Maganga
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 514 of 2013
- Procedural Posture
- Civil Case / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- Application for dismissal for want of prosecution dismissed with conditions.
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Dismissal for Want of Prosecution, Case Management, Delay in Prosecution, Order 17 Rules, Compliance With Court Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Wycliff Ambetsa Oprangya
Plaintiff
Philip Mseve Kutima
Plaintiff
Citizen Television
Defendant
Royal Media Services
Defendant
Faiza Maganga
Defendant
Procedural Posture
Civil Case / Ruling on Application for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the suit should be dismissed for want of prosecution due to delay by the plaintiffs.
- 2 Whether the delay in prosecuting the suit was inordinate and inexcusable.
- 3 Whether justice can still be served despite the delay.
Ratio Decidendi
The court found that while there was a delay of approximately one and a half years in prosecuting the suit, this delay was not inordinate given the circumstances. Both plaintiffs and defendants shared responsibility for non-compliance with court directions, and the nature of the evidence sought (televised news bulletin) was unlikely to be prejudiced by the passage of time. The court emphasized that dismissal is a drastic remedy and should only be applied where justice cannot otherwise be served. Accordingly, the plaintiffs were given a final opportunity to move the case forward by filing a formal application to compel production of evidence within 60 days or listing the matter for hearing...
Court Disposition
Application for dismissal for want of prosecution dismissed with conditions.
Orders
- Plaintiffs to file a formal application to compel defendants to produce evidence within 60 days from the date of the ruling or list the matter for hearing within 120 days from the date of the ruling.
- Failure to comply with either step will result in the suit standing dismissed.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CIVIL CASE NO. 514 OF 2013
WYCLIFF AMBETSA OPRANGYA......1ST PLAINTIFF
PHILIP MSEVE KUTIMA .....................2ND PLAINTIFF
VERSUS
CITIZEN TELEVISION .......................1ST DEFENDANT
ROYAL MEDIA SERVICES ...............2ND DEFENDANT
FAIZA MAGANGA ..............................3RD DEFENDANT
RULING
This suit was filed on 6th December, 2013. Upon service the defendants filed an appearance and a statement of defence. Thereafter the plaintiff filed a reply to the statement of defence on 3rd February, 2014. The plaintiff having failed to prosecute the case thereafter, the defendants filed an application by way of Notice of Motion dated 28th June, 2017 under Order 17 Rule 2 and 3 and Order 51 of the civil Procedure Rules alongside Section 1A, 1B and 3A of the Civil Procedure Act seeking the dismissal of the suit.
That application as opposed by the plaintiff and it later transpired that both parties had not complied with Order 11 of the Civil Procedure Rules. However, on 27th February, 2018 the Deputy Registrar noted that both parties had then complied and the case was ready for hearing.
Subsequently however, the plaintiff issued the defendants with a notice to produce dated 19th February, 2018 which, it appears, has not been complied with to date. There is evidence that the defence had indicated the plaintiffs ought to file a formal application for such an order. That application has not been filed to date.
On 13th March, 2020 the defendants filed yet another application dated 12th March, 2020 seeking the same orders, that is the dismissal of the plaintiff’s suit for want of prosecution. Both parties have filed submissions to address that application which I have considered. The pleadings in this case were closed 14 days after the filing of the reply to the defence by the plaintiff. There is no formal application lodged by the plaintiff to produce the evidence required during the trial. However, that cannot be held against the plaintiff. Order 17 Rule 2 (3) cited in the application is relevant provided that the applicant justifies the conditions upon which such an order may be given. It is now generally accepted that for a suit to be dismissed, the delay must be inordinate and or prolonged and where there is no excuse for the same. The court however, may still deny such an order if it is satisfied justice can be done to the parties. – See Ivita vs. Kyumbi (1984) KLR 441.
On the other hand however, the court must ensure that no prejudice is occasioned to the defendant by such a delay in the form of disappearance of evidence, or lapse of memory resulting from such a delay. The record shows that this matter was last in court on 3rd October, 2018 and the present application was filed on 12th March, 2020. In effect the delay can be said to be one and half years at most.
This cannot be said to be inordinate delay although the plaintiff may be blamed for failing to comply with directions given by Kamau J on 3rd October, 2018 where the defendants were directed to comply with the plaintiffs notice to produce failure of which the plaintiffs were to move the court for appropriate orders. I note however that both the plaintiffs and the defendants had the duty to comply and therefore, the delay cannot be attributed to the plaintiffs alone.
I also note that dismissal of a suit is a drastic measure which should be invoked cautiously because, it has the effect of driving a party out of a judgment seat. I further note that, the nature of evidence sought by the plaintiffs from the defendants is in the form of “televised news bulletin” which technologically may not be subject to loss of memory or lapse of time, because storage thereof may be ensured by placing it in the archives.
I shall give the plaintiff’s another chance to advance this matter by ordering that they file a formal application within 60 days from the date of this ruling to compel the defendants to produce whatever evidence that may be required or list the matter for hearing within 120 days from the date of this ruling.
In the event they fail to comply with either of the above steps the suit shall stand dismissed. The costs of this application shall be in in the cause.
Dated, signed and delivered at Nairobi this 23rd day of July 2020.
A. MBOGHOLI MSAGHA
JUDGE