HIGH CIVIL CASE NO. 1 OF 2019
NEW AGE DEVELOPERS & CONSTRUCTION CO. LTD……PLAINTIFF
VERSUS
SIDIAN BANK LTD………...……………………………….….DEFENDANT
RULING
- Before this Court for determination is the Notice of Motion dated 20th March 2024 by which the Defendant/Applicant SIDIAN BANK LIMITED seek the following orders;-
“1. THAT the Honourable Court be pleased to dismiss the Plaintiff’s Suit herein with costs for want of prosecution.
2. THAT costs of this application and the entire suit be borne by the plaintiff.
2. The application which was premised upon order 17 Rule 2(1), (3) and (4) and Order 51 Rule 1 of the Civil Procedure Rules 2010 and Section 1A, 1B, 3A of the Civil Procedure Act and all other enabling provisions of the law was supported by the affidavit of even date sworn by ALEX THANGEI an Advocate of the High Court of Kenya.
3. The plaintiff/Respondent NEW AGE DEVELOPERS & CONSTRUCTION CO. LTD opposed the application through the Replying Affidavit dated 25th June 2024 sworn by JULIE RADOL also an Advocate of the High Court of Kenya.
4. The Plaintiff/Respondent herein initiated this suit by way of plaint dated 24th May 2017. Hon. Lady Justice Muchemi delivered a ruling in which she granted the Defendant leave to file their defence out of time and directed that the defence filed on 26th March 2021 be deemed as properly filed.
5. The Applicant avers that it is now over one (1) year and six (6) months since the plaintiff took any action to advance the prosecution of this suit. They claim that the plaintiff has obviously lost interest in the matter. The Applicant prays that the suit be dismissed for want of prosecution.
6. In response the Respondent confirms having filed the plaint dated 24th May 2017. The Respondent avers that they have made attempts through the court reacting to have the suit set down for hearing to no avail. That to dismiss the suit would be prejudicial to the plaintiff.
7. The Respondent avers that it fully intends to prosecute the suit to its logical conclusion and prays that this application be dismissed.
ANALYSIS AND DETERMINATION
8. I have considered this application, the reply filed thereto as well as the written submissions filed by the parties.
9. Order 17 Rule 2(1) of the Civil Procedure Rules 2010 which governs the dismissal of suits for want of prosecution provides as follows:-
“In any suit in which no application 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 course is not shown to its satisfaction, may dismiss the suit.”
10. Order 17 Rule 2(1) provides for the dismissal of a suit by the court ‘suo moto’. Order 17 Rule 2(3) of the same Rules provides for dismissal of a suit upon application of a party as follows;-
“Any party to the suit may apply for dismissal as provided in sub-rule 1”
11. The above rules provides that where a suit has been inactive for at least twelve (12) months the court either on its own motion or upon application may dismiss the suit.
12. However it must be remembered that notwithstanding the twelve (12) month rule the court retains the final discretion in determining whether or not a suit should be dismissed.
13. In the case of ARGAN WEKESA OKUMU -VS- DIMA COLLEGE LIMITED and 2 OTHERS [2015] eKLR the principles to be applied in dismissing a suit for want of prosecution were set out as follows;-
“The principles governing applications for dismissal for want of prosecution are well settled and have been established by a long line of authorities. The applicant must show that the delay complained of is inordinate that the inordinate delay is inexcusable and that the Defendant is likely to be prejudiced by such delay…………. Further to this, the decision of whether or not to dismiss a suit is discretionary and this court must exercise such discretion judiciously. Additionally, each case must be decided on its own facts, keeping in mind that a court should strive to sustain a suit where possible rather than prematurely terminating the same.”
14. Similarly in the case of IVITA -VS- KYUMBU [1984] KLR 441, the Court of Appeal held as follows.
“The test applied by the courts in an application for the dismissal of a suit for want of prosecution is whether the delay is prolonged and inexcusable, and, if it is, whether justice can be done despite the delay. Thus even if the delay is prolonged, if the court is satisfied with the plaintiffs 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.”
15. The Applicant has averred that the Respondent has neglected failed and/or declined to have the suit set down for hearing. That it has been over one and a half (11/2) years since 22nd September 2022 when the matter was last in court. This according to the Applicant is ample proof that the Respondent is not taking the matter seriously hence the prayer to have the suit dismissed.
16. On their part the Respondent has denied any lack of seriousness on its part. The Respondent counters that the matter is still active and states that the court has heard and disposed of certain applications in the file.
17. The Respondent avers that they have sought in vain to secure a date for hearing. As evidence the Respondent has annexed a copy of their letter dated 13th September 2022 written to the Hon. Deputy Registrar seeking a date. (Annexture ‘RJ 2(a)’). However said letter did not elicit any response.
18. This court takes judicial notice of the fact that court diaries countrywide are extremely overstretched. The difficulty in procuring hearing dates is not a myth.
19. The Respondent further states that it wrote to the Applicant seeking to be updated on the status of the properties as they have reason to believe that some of the properties in question have already been sold. A copy of said letter dated 6th June 2024 is also annexed to the Replying Affidavit. (Annexture ‘RJ-3’). The Respondents state that their letter has not been responded to.
20. I am mindful of the fact that dismissal of a suit is a drastic step-one which should only be taken as a last resort, where there is clear proof of indifference and laches on the part of the plaintiff. In this case I am not persuaded that the Respondents actions reveal a lack of interest in their case. In the circumstances I am not inclined to allow this application for dismissal.
21. In order to expedite this matter I direct the Applicants to respond to the letter dated 6th June 2024 within fourteen (14) days. Thereafter the Respondent/plaintiff is granted leave to amend their plaint within fourteen (14) days (If need be). The Applicant/Defendant will have corresponding leave to amend their defence (if need be). The matter will then be mentioned in this court to confirm compliance and to get a hearing date.
22. Each party will meet their own costs for this application.
Dated in Nyeri this 8th day of November, 2024