REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
COMMERCIAL AND TAX DIVISION
HCCOMM NO. 291 OF 2018
LEXIS INTERNATIONAL LIMITED………..…………………….PLAINTIFF
-VERSUS-
DALALI TRADERS LIMITED………………………….…..1ST DEFENDANT
ECOBANK LIMITED…………...………………….……….2ND DEFENDANT
MORU RIDGE LIMITED………………………………..….3RD DEFENDANT
RULING
- This ruling is on whether the suit herein should be dismissed for want of prosecution. On 17th May, 2022, the Deputy Registrar gave directions for a Notice to Show Cause to be issued to the parties herein for the plaintiff to show cause as to why this suit should not be dismissed for want of prosecution. The parties herein were then notified that this matter was listed for Notice to Show Cause on 2nd June, 2022 before Hon. Lady Justice Okwany. In opposition to the Notice to Show Cause, the plaintiff filed a replying affidavit sworn on 22nd September 2022, by David Nyangena, learned Counsel for the plaintiff. The 1st and 2nd defendants on the other hand filed grounds in support of dismissal of this suit dated 17th October, 2022 on the following-
- That the plaintiff is in breach of the overriding objective to expeditiously prosecute its suit;
- In Nzoia Sugar Company Limited v West Kenya Sugar Limited [2020] eKLR, the Court dismissed a case where the plaintiff after failing to obtain an injunction took no steps in prosecuting the suit for 2 years;
- The suit in HCCOMM E137 OF 2018 (O.S) is totally independent and was concluded;
- Where no summons are collected within 30 days, the suit abates;
- Where the summons are not renewed in 24 months their validity expires. The suit has abated and more than 4 years have passed since the date of filing;
- No evidence has been adduced as to why no application for extension of summons during their period of validity has ever been made; and
- The delay has been considerable, inexcusable and the plaintiff is substantially to blame for the delay and therefore the suit ought to be dismissed.
- The Notice to Show Cause was canvassed by way of written submissions. The plaintiff’s submissions were filed on 19th July, 2023 by the law firm of Kerandi Manduku & Co. Advocates, whereas the 1st & 2nd defendants’ submissions were filed by the law firm of Wamae & Allen Advocates on 21st February, 2023. Notably, the 3rd defendant did not file any responses and or submissions with respect to the Notice to Show Cause.
- Mr. Nyangena, learned Counsel for the plaintiff relied on the case of Ivita v Kyumbu [1984] KLR 441, where the Court laid down principles for dismissal of suits for want of prosecution. He submitted that in view of the fact that the 2nd defendant has not sold the suit property, the Notice to Show Cause herein should be set aside and the plaintiff allowed to prosecute its suit on merits. On the issue of Summons to enter appearance, learned Counsel submitted that upon filing the present suit, the plaintiff was issued with summons to enter appearance.
- Thereafter, the said summons were served upon the 1st & 2nd defendants who instructed their present Advocates on record, who have been on record for them from the onset of this suit to date. Furthermore, the said Advocates have never raised any issue with regard to summons to enter appearance. To this end, Mr. Nyangena relied on the cases of Macharia (Suing as Administrator of the Estate of the late Grace Priscillah Wawuda -Deceased) v Salaja & another (Civil Appeal 197 of 2021) [2022] KEHC 17081 (KLR) and the Court of Appeal case of Equatorial Commercial Bank Limited v Mohansons (K) Limited [2012] eKLR, where it was held that a suit cannot abate where a defendant has participated in the proceedings but later claims summons to enter appearance were not served on it.
- Mr. Gichuhi (SC), learned Counsel for the 1st & 2nd defendants relied on the provisions of Section 1A (3) of the Civil Procedure Act and the case of James Ovid Shugars Yhap v Eric Okeno & 2 others [2018] eKLR, and submitted that the plaintiff has not been diligent in pursuing the expeditious disposal of its suit. He contended that the delay goes to the pinnacle of the principle of administration of justice, and that the plaintiff’s inaction to prosecute this suit is a blatant mutilation of the overriding objective hence this Court should dismiss the present suit. Counsel urged this Court to be guided by the decision in Thathini Development Company Limited v Mombasa Water & Sewerage Company & another [2022] eKLR.
- Mr. Gichuhi (SC), cited the case of Koileken Ole Kiolonka Orumoi v Mellech Engineering & Construction Ltd & 2 others [2019] eKLR and asserted that this suit abated by operation of the law pursuant to the provisions of Order 5 Rule 1(6) of the Civil Procedure Rules, 2010. He also cited the decisions in the cases of Tropical Foods International & another v Eastern and Southern African Trade and Development Bank & another [2017] eKLR and Julius Njoroge Muira v Harrison Kiambuthi Mburu [2011] eKLR and contended that if at all the said summons were collected, they are now invalid for failure by the plaintiff to renew them within 24 months of their validity.
ANALYSIS AND DETERMINATION.
- Upon consideration of the Notice to Show Cause, the plaintiff’s replying affidavit, the 1st & 2nd defendants’ grounds in support of dismissal of this suit, and the written submissions by Counsel for the parties, the issues that arise for determination are-
- Whether this suit abated for failure by the plaintiff to collect and serve summons to enter appearance upon the defendants; and
- Whether this suit should be dismissed for want of prosecution.
- In the affidavit filed by the plaintiff, it averred that this matter is related to HCCOMM No. E137 of 2018 (OS) filed by the 2nd defendant seeking an order allowing them to participate and purchase the suit property herein, being L.R No.29059, Unit No. M00I4, I.R No.149050, Migaa Farm charged to the 2nd defendant. It further averred that the parties in the aforementioned suit agreed to stay this suit pending its hearing and determination since the orders sought therein affected the suit property in this suit.
- It was stated by the plaintiff that a ruling was delivered in HCCOMM No. E137 of 2018 (OS) on 22nd January, 2020 granting the 2nd defendant leave to purchase the charged suit property herein being Unit No. M0014 situated on L.R No. 29059, I.R. No. 149050 Kiambu, by private treaty and at market price, pursuant to Section 100(1) of the Land Act.
- Thereafter, the parties agreed that the 2nd defendant would sell the said property, recover the monies due and owing to it, and would deposit the excess funds in Court or in a joint interest earning account in the name of the Advocates for the plaintiff and the 3rd defendant herein, pending the hearing and determination of this suit. In the meantime, this matter was mentioned severally to confirm if the 2nd defendant had found a suitable buyer for the charged suit property.
- The plaintiff stated that after several mentions, it was agreed by the parties herein that this matter should be stood over generally so as to give the 2nd defendant adequate time to sell the charged suit property. The plaintiff averred that the 2nd defendant’s failure to sell the charged suit property is the sole cause for the delay in prosecuting this matter. It contended that in light of the above, it has not intentionally failed to prosecute this suit.
Whether this suit abated for failure by the plaintiff to collect and serve summons to enter appearance upon the defendants.
- The 1st & 2nd defendants asserted that they have never been served with summons to enter appearance in this matter thus this suit abated by operation of the law pursuant to the provisions of Order 5 Rule 1(6) of the Civil Procedure Rules, 2010 which states as hereunder: -
“Every summons, except where the court is to effect service, shall be collected for service within thirty days of issue, failing which the suit shall abate.”
- On perusal of the Court record, I find no evidence of service of summons to enter appearance upon the defendants personally and/or on their Advocates on record. In addition, the contents of paragraph 2 of the affidavit of service sworn on 26th July, 2018 by Nyaramba Mariera reveals that the defendants were only served with the certificate of urgency, the plaint, verifying affidavit, list of witnesses, a witness statement and list of documents on 25th July, 2018. Accordingly, in the absence of any evidence to the contrary, I am inclined to find that the defendants were never served with summons to enter appearance, and there is no way for this Court to verify whether the plaintiff collected the said summons.
- The above notwithstanding, it is not disputed that the 1st & 2nd defendants were aware of the existence of this suit having been served with the certificate of urgency, the plaint, verifying affidavit, list of witnesses, a witness statement and list of documents, and they even went ahead and instructed a firm of Advocates to represent them. Further, they have been actively participating in the proceedings in this suit and have not claimed that the plaintiff’s failure to serve them with summons to enter appearance caused them to suffer prejudice either in law or in equity. To this end, I am bound by the Court of Appeal decisions in Equatorial Commercial Bank Limited v Mohansons (K) Limited (supra), where it relied on the case of Macfoy v United Africa Co. Ltd [1961] All. E. R. (Vol.3)1169 and held that:
“Considering the facts and circumstances before us can summons be treated as void though because it has not complied strictly with the statutory provisions? Can a litigant after having fully participated in the legal process on service of such summons, resile on all the actions taken by him openly and voluntarily? We may add that there is no allegation that such actions have caused any prejudice to the respondent either in law or in equity. We shall emphatically decline to find so…
We find therefore, that the respondent by its overt acts waived its right to challenge the validity or otherwise of the summons issued in the matter.”
- To this end, this Court finds that this suit did not abate by virtue of the plaintiff’s failure to collect and serve summons to enter appearance upon the defendants.
Whether the suit should be dismissed for want of prosecution.
- Dismissal of suits for want of prosecution is provided for under Order 17 Rule 2 of the Civil Procedure Rules, 2010. The parties herein were issued with a Notice to Show Cause why this suit should not be dismissed for want of prosecution pursuant to the provisions of Order 17 Rule 2(1) & (2) of the Civil Procedure Rules, 2010 which states 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.”
- From the record, it is evident that this matter was stood over generally on 21st November, 2018. It was thereafter mentioned on 2nd March, 2020 before the Deputy Registrar when Counsel for the 2nd defendant indicated that the plaintiff did not make any attempt to have the matter settled thus another mention date for compliance could be fixed. That was the last time this matter was in Court. There is no evidence of any action and/or activity in the file since then till 17th May, 2022 when the Notice to Show Cause was issued.
- Dismissal of suits for want of prosecution is a matter that is within the Court’s discretion. In the case of Ivita v Kyumbu (supra), the Court set down the test of whether a suit should be dismissed for want of prosecution as hereunder –
“So, 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 and that justice can still be done to the parties notwithstanding 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. Where the defendant satisfies the court that there has been prolonged delay and the plaintiff does not give sufficient reason for the delay the court will presume that the delay is not only prolonged but it is also inexcusable and in such case the suit may be dismissed.”
- The averment by the plaintiff that the delay in prosecuting this matter was occasioned by the 2nd defendant’s failure to sell the charged suit property is of little or no probative value. This is because, I see no reason why the plaintiff did not cause this matter to be listed for mention for directions and/or hearing, since there are no orders from any Court of competent jurisdiction staying the proceedings in this suit, a fact which is not disputed by the parties herein.
- In Nzoia Sugar Company Limited v West Kenya Sugar Limited (supra), a decision relied on by Counsel for the 1st and 2nd defendants, the Court stated as follows in regard to a two years’ delay in prosecution of a case-
“18. Balancing the positions of the two parties, I take the view that delay of two years in prosecuting a matter is inordinate and unreasonable. The plaintiff has not explained it. The mere fact that the defendant has not demonstrated prejudice is not sufficient to sustain a suit that the plaintiff has shown no interest in prosecuting for the two years before the application for dismissal was made. It would appear that the suit was filed for the sole purpose of obtaining injunctive orders, and once the same were denied the plaintiff lost interest in the matter.
19. Parties should file suits in court with a view to prosecute them. It should never be the case that suits are filed for the sake of it. They should not remain parked in the court’s registry, filling space and creating a false sense of backlog of cases. A suit should be prosecuted, failing which it should meet the fate of dismissal for want of prosecution.”
- I totally agree with the holding of the Court in the above case. In this instance, it is evident that there has been prolonged delay in prosecuting this suit since a period of approximately two (2) years had elapsed prior to the issuance of the Notice to Show Cause. In the absence of a merit based explanation as to why the plaintiff has never taken any action towards prosecuting this suit since 2nd March, 2020, I am inclined to find that the plaintiff has displayed lack of interest in this suit.
- The upshot is that the suit herein is dismissed for want of prosecution with costs to the 1st and 2nd defendants.
It is so ordered.
DATED, SIGNED and DELIVERED at NAIROBI on this 9th day of February, 2024. Ruling delivered through Microsoft Teams Online Platform.
NJOKI MWANGI
JUDGE
In the presence of:
Mr. Nyangena for the plaintiff
Mr. F. Otieno h/b for Mr. Gichuhi (SC) for the 1st & 2nd defendants
Ms B. Wokabi – Court Assistant.