ROBERT TONKEI MASI AND PENINAH BRENDA NDUTA VS FAMILY BANK LIMITED AND EDN GEORGE DIESEL LIMITED AND 3 Others

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KAJIADO

CIVIL SUIT NO 1 OF 2021

ROBERT TONKEI MASI………………..….…............1^ST PLAINTIFF/RESPONDENT

PENINAH BRENDA NDUTA…………………….…….2^ND PLAINTIFF/RESPONDENT

VERSUS

FAMILY BANK LIMITED………………......…………….……...1^ST DEFENDANT/APPLICANT

EDN GEORGE DIESEL LIMITED…………………….…...2^ND DEFENDANT/RESPONDENT

GEORGE MUNGAI…………………….……………….……..3^RD DEFENDANT/RESPONDENT

NANCY WANJIKU WACHIRA…..……………..…………….4^TH DEFENDANT/RESPONDENT

ONESMUS MACHARIA T/A WATTS AUCTIONS……..…5^TH DEFENDANT/RESPONDENT

RULING

Notice of Motion

1. The Applicants herein are the Defendants in the main suit. They have brought a Notice of Motion dated 29^th June, 2023 anchored under sections 1A, 1B, 3A and 3B of the Civil Procedure Act, Order 17 Rule 2(1) and (3), Order 51 of the Civil Procedure Rules all other enabling provisions of the law, seeking orders that:
2. The Plaintiff’s suit be dismissed for want of prosecution.
3. The costs of and incidental to this Application be borne by the Plaintiffs.
4. The Applicants have advanced the grounds in support of their application found on the face of the application and in the Supporting Affidavit sworn by Collins Mitugo, advocate for the 1^st Defend ant/Applicant, that the Plaintiffs/Respondents filed a Plaint dated 3^rd May, 2021 and a Notice of Motion dated 7^th May, 2021 in which they sort temporary injunctive orders against the Defendants; that the Defendants/Applicants entered appearance through a Notice of Appointment of advocates dated 19^th May, 2021 and that the file was transferred from ELC Nairobi to Kajiado High Court through the orders dated 12^th May 2021 for lack of jurisdiction.
5. The Applicants have stated that since the matter was transferred to Kajiado High Court, the Plaintiffs have been indolent and have failed, refused and/or neglected to set down the matter for a pre- trial conference or for hearing; that the period of one year has lapsed since the matter was transferred to Kajiado High Court; that this delay by the Plaintiffs is prolonged and inexcusable; that the delay is causing prejudice and injustice to the 1^st Defendant/Applicant as the burden of litigating this matter remains hanging over its head and that the Plaintiffs are no longer interested in prosecuting the matter to its end and therefore in the interest of justice this matter should be dismissed for want of prosecution.
6. The Application is opposed by the Respondents/Plaintiff through their Replying Affidavit dated 4^th December, 2023 sworn by Mr. Dondo Joseph, learned counsel for the Respondents/Plaintiffs. It is the case for the Respondents that the claims by the Applicant are baseless; that since the matter was transferred to Kajiado they have followed up on a pre-trial date until 26^th June, 2023 when the court via email set the matter for mention on 12^th July, 2023. It is their case that on the said date the matter was not listed either in the High Court Civil or the ELC Cause Lists after which they communicated to the court by email but did not get a response. It is their case that they are interested in prosecuting the matter and the court should hear their case on merit.
7. The Application was canvassed through written submissions.

Applicants’ Submissions

• 1. The Applicants’ submissions are dated 19^th July, 2024. They submitted on whether the Plaintiffs’ suit should be dismissed and who should bear the cost?

1. The Applicants relied on Order 17 of the Civil Procedure Rules and the case of Argan Wekesa Okumu – vs – Dima College Limited & 2 others [2015] eKLR where the Court stated that:

“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 in inexcusable and that the Defendant is likely to be prejudiced by such delay.”

1. They also relied on the case of Thathini Development Company Limited – vs- Mombasa Water & Sewerage Company & another [2022] eKLR, where the Court stated that:

“In order for these legal principles to be applicable the following need to be demonstrated: -

(a) That no application has been made or step taken by either party for one (1) year from the time of filing the suit and

(b) That the Respondents have failed to comply with the directions of the court clearly.

1. It was submitted that the claims by the Respondents/Plaintiffs that they have been following up on the matter for 2 years is false; that the Respondents/Plaintiffs could have explored other means to prosecute the case and that the alleged email written by the Respondents/Plaintiffs did not have a delivery receipt to demonstrate that the court received it.
2. They submitted that delay was prolonged and inexcusable. They relied on Nilesh Premchand Mulji Shah & Another t/a Ketan Emporium – vs- M.D Popat and others [2016] eKLR where it was held that,

“Article 159 of the Constitution and Order 17 Rule 2(3) gives   the court the discretion to dismiss the suit where no action has been taken for one year and on application by a party as justice delayed without explanation is justice denied and delay defeats equity. That discretion must be exercised on the basis that it is in the interest of justice, regard being had to whether the party instituting the suit has lost interest in it, or whether the delay in prosecuting the suit is inordinate, unreasonable, inexcusable, and is likely to cause serious prejudice to the defendant on account of that delay.”

1. They relied on various cases as outlined on the face of their submissions to demonstrate that the delay by the Plaintiff was inordinate and inexcusable. They further submitted that the legal substratum for dismissal of suits for want of prosecution is founded on the principles that litigation must come to an end.
2. On whether any prejudice has been occasioned to them they argued that they continue to suffer irreparable loss and injury which affects their ability to run and do business; that the Plaint seeks a permanent injunction restraining them from interfering with property Kajiado/Ntashart/1474 from which they intended to recover what is due to them and that this Court, on 25^th June 2024, declared that status quo should be maintained, which continues to prejudice them. They relied on John Nduati Kariuki t/a Johester Merchants -vs- National Bank of Kenya Ltd Civil Application No Nai 306 of 2005[2006]1 EA 96, in which the Court of Appeal held that:

“A bank has no money of its own and it is axiomatic that it uses public funds to trade with. The applicant having obtained a large amount of those funds and had full benefit of it and having offered securities knowing fully well that they would be sold if he defaulted on the terms stated in the security documents, cannot be heard to say that the securities are unique and special to him as the bank is capable of refunding such sums as may be found due to the applicant, if any, and that capacity has not been challenged”.

1. On the issue of costs, they submitted that granting of costs is discretionary and that costs are awarded to a successful party. They relied on Party of Independent Candidate of Kenya & another – vs- Mutula Kilonzo & 2 others (2013)eKLR which cited the words of Murray C J in the case of Levben Products v. Alexander Films (SA) (PTY)Ltd 1957 (4) SA 225 (SR) at 227, that:

“It is clear from authorities that the fundamental principle underlying the award of costs is two-fold. In the first place the award of costs is matter in which the trial Judge is given discretion (Fripp vs Gibbon & Co., 1913 AD D 354). But this is a judicial discretion and must be exercised upon grounds on which a reasonable man could have come to the conclusion arrived at…. In the second place the general rule that costs should be awarded to the successful party, a rule which should not be departed from without the exercise of good grounds for doing so.”

Respondents/Plaintiffs Submissions

1. The 1^st and 2^nd Respondents/Plaintiffs submissions are also dated 19^th July, 2024. They submitted on the singular issue whether this suit should be dismissed for want of prosecution.
2. It is their submissions that they have demonstrated that they have always been in court and the matter has either been wrongly listed or not listed at all and that they have communicated to the
   Court through emails to follow up on this matter and that it is their case that they cannot be termed as having been indolent. They relied on the case of Mwangi S. Kimenyi -vs- Attorney General & Another [2014] eKLR where the Court stated that:

“The decision whether a suit should be re-instated for trial is a matter of justice and it depends on the facts of the case. See the case of IVITA v KYUMBU [1984] KLR 441, Chesoni, J. (as he then was) that: 

“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 the action will not be dismissed, but it will be ordered that it be set down for hearing at the earliest available time…..”

1. They urged this court to exercise its discretionary power in its favour and grant them the right to be heard enshrined under Articles 159 and 50 of the Constitution of Kenya.

Determination

I have read the Application and the grounds in support of the same. I have also read the Replying Affidavit in opposition as well as the submissions of the parties. The Applicants are relying on Order 17 (2) of the Civil Procedure Rules to back up their application to persuade this Court to dismiss this suit for want of prosecution. This Order provides that:

Notice to show cause why suit should not be dismissed [Order 17, rule 2.]

(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.

1. This Court was moved by the Applicants to dismiss this suit citing inordinate and inexcusable delay by the Respondents/Plaintiffs in prosecuting the suit. It is prudent to revert to the Court record to understand the history of this matter.
2. This matter was instituted in Nairobi in the Environment and Land Case (ELC) E158 of 2021 through a Plaint dated 3^rd May 2021 and Notice of Motion dated 7^th May 2021. On 12^th May 2021, the Court (Eboso, J) noted that the ELC lacked jurisdiction to determine the matter. He directed that the matter be transferred to Kajiado High Court for the reason that the mortgaged property in dispute was situated in Kajiado County. The record shows that the file was first placed before the Deputy Registrar of Kajiado High Court on 12^th July 2023. I have seen communication from Kajiado High Court (email dated 7^th October 2021) sent at 12.17pm on that date advising counsel for the Plaintiffs that the file has been assigned Kajiado High Court Civil Case No. 1 of 2021. There is also another email addressed to the same counsel informing him of the mention date on 12^th July 2023,
3. I have not seen records showing what happened between 12^th May 2021 when the ELC Judge transferred the matter to 7^th October 2021 when the file was assigned the Kajiado High Court number. There is no material placed before me to demonstrate when ELC Nairobi transmitted the file from that Court to Kajiado High Court.
4. On 12^th July 2023, the record shows that there was a power blackout at Kajiado and that the matter could not be mentioned. The DR allocated 11^th October 2023 for mention but it seems that the matter was not mentioned on that day. A date, 6^th December 2023, was fixed for mention of the matter. On that date, counsel for both parties were present in court. They were given another date, 7^th May 2024 before the Judge. By this time, the current application had been filed. Directions were issued that the application be canvassed through written submissions.
5. It is clear to me that there has been a delay in this matter. The period between the orders of Justice Eboso on 12^th May 2021 to 7^th October 2021 when the file was assigned new number at Kajiado High Court cannot be blamed on the Plaintiffs unless reason be shown that they are responsible in causing that delay, which in my considered view, they are not.
6. Further, there is an obvious delay from the date this matter was assigned a Kajiado number on or about 7^th October 2021 to the time the matter was mentioned before the Deputy Registrar Kajiado High Court on 12^th July 2023. The Plaintiffs’ counsel claims that their emails to the court on the matter went unanswered. There seems to have been a lapse on communication between the Registry and counsel for the Plaintiffs.
7. The discretion of this court to dismiss a suit for want of prosecution must be exercised “….on the basis that  it is in the interest  of justice  regard being had to whether  the party instituting the suit  has lost  interest in it, or  whether  the delay in prosecuting the suit  is inordinate, unreasonable, inexcusable, and is likely to cause  serious  prejudice  to the defendant  on account of that delay..” as stated in  Nilesh Premchand Mulji Shah & Another t/a Ketan Emporium v M.D. Popat and others & another [2016] eKLR.

here possible rather than prematurely terminating the same.”

1. I have considered this matter and the rival arguments. It is my considered view that the delay in having this matter determined expeditiously was majorly caused by both Registries in ELC at Nairobi and at Kajiado High Court. In all fairness it would be unwarranted to shift this blame to the Plaintiffs. In the interest of justice, taking all factors into consideration, it is fair for this Court to be slow in dismissing this suit for want of prosecution. In so doing, I am alive that the Applicants are desirous of having this matter concluded expeditiously. However, it would be prejudicial for the Plaintiffs to dismiss this suit based on the delay caused by the Registry in both courts.
2. For the above reasons, I decline to grant the prayers sought in the Application dated 29^th June 2023. I direct that each party bears own costs for this application.
3. Orders shall issue accordingly.

Dated, singed and delivered this 24^th January 2025.