Whether this suit should be dismissed for want of prosecution.
11.The legal framework on dismissal of a suit for want of prosecution is found in Order 17 Rule 2 of the Civil Procedure Rules, 2010 which provides as follows: -
12.From the following provision of the Civil Procedure Rules, it is clear that a court may suo motto dismiss a suit for want of prosecution and at the same time it may dismiss a suit upon the application by either party to the suit.
13.Further, the guiding principle to be applied in considering whether or not a suit should be dismissed for want of prosecution has been articulated and settled in a number of authorities, among them the case of Ivita -vs- Kyumbu(1984) KLR 441 where the court summarized the criteria for dismissal as follows:
14.In Mwangi S. Kimenyi -vs- Attorney General and Another, Civil Suit Misc. No. 720 of 2009, the court restated the test as follows: -
15.The Defendants herein have moved this court to dismiss the suit filed by the Plaintiff on the grounds that the Plaintiff is guilty of prolonged, inordinate and excusable delay in prosecuting the matter and that the Defendants stand to suffer prejudice if this application for dismissal is not granted.
16.In his response the Plaintiff acknowledged its failure to prosecute and explained that the failure was occasioned by an oversight on its part after the former firm of Ogutu Mboya & Ochwal Advocates ceased to act for it and the Plaintiff inadvertently failed to appoint another counsel to represent it.
17.The Plaintiff having acknowledged that there was a delay and/or failure on its part to prosecute his suit the question therefore is whether the reason given for the failure and/or delay in prosecuting the matter by the Plaintiff is reasonable and excusable.
18.The court record reveals that the inactivity on the part of the Plaintiff in the matter began on 6th August, 2018 when the firm of Oguttu Ochwangi & Ochwal Advocates who were previously representing it filed an application seeking to cease acting for the Plaintiff. In the said application the said firm of Advocates argued that during the pendency of the suit, the National Land Commission had nullified the title to the suit property illegally. The said firm stated that despite advising their former client that there was an urgent need to institute Judicial Review proceedings against the National Land Commission, the Plaintiff went silent and did not bother to give them any instructions. They contended that they were therefore not in a position to defend the Plaintiff’s interests in the suit and thus requested to be discharged from representing the Plaintiff.
19.The said application came up for hearing on 26th September, 2018. After confirming that the Plaintiff had been served with the application as evidenced by an affidavit of service dated 22nd September, 2018 and that the same was not opposed, the court allowed the application.
20.On 16th November, 2020, this court issued a Notice to show course why the suit should not be dismissed for want of prosecution under order 17 rule 2(1) of the Civil Procedure Rules 2010. The Notice was served upon firm of Oguttu, Ochwangi & Ochwal Advocates and the counsel representing the Defendants. On 5th March, 2021 when the matter came up for mention only a representative of the firm of Oguttu, Ochwangi & Ochwal Advocates appeared in Court. The said representative informed the court that their firm had been discharged from acting for the Plaintiff in the matter on 26th September, 2018 and requested that the Plaintiff be served in person.
21.The court therefore directed that the Plaintiff be served in person and the matter be mentioned on 27th April, 2021. Once again the Notices were erroneously served upon the former advocates who appeared in court and insisted that the Plaintiff be served in person. The Court once more directed that a Mention Notice be served by the court on the Plaintiff in person and the matter be mentioned on 27th May, 2021 for further directions. From the court record there is copy of a Notice bearing the stamp of the Plaintiff showing that indeed a Mention Notice was served on the Plaintiff on 27th April, 2021.
22.On 27th May, 2021, only the learned counsel for the Defendants attended court and thus the court directed that the matter be mentioned on 22nd July, 2021. On the said date, once again it was counsel for the Defendants who appeared in court. Counsel for Defendants requested the court to grant him an opportunity to file the application for dismissal of the suit. The said application was subsequently filed.
23.From the above review of the proceedings in this matter, it is clear that this was a matter that was ripe for dismissal by this Court suo moto without even considering the merits of the application for dismissal by the Defendants and the response to the said application by the Plaintiff.
24.The Plaintiff having been served with a Mention Notice dated 27th April, 2021 for them to appear in court on 27th May, 2021 failed to do so. There is nothing that prevented this court from dismissing the suit under Order 17 Rule 2 (1) of the Civil Procedure Rules, 2010. The reason given for the failure to prosecute the Plaintiff’s case cannot aid the Plaintiff an in indolent party who had already been given sufficient time to show cause why the suit should not be dismissed and failed to show such cause.
25.That being the position, this court cannot grant an application for stay by the Plaintiff on a matter that was set for dismissal as early as 27th May, 2021 for want of prosecution. The Plaintiff which personally received the said notice cannot be heard trying to shift blame to its former Advocates for its indolent. Furthermore, the Plaintiff has in its application for stay revealed that it has another matter, ELC Case No. 14 of 2014 which will substantially resolve the issues in dispute. It beats logic why this court should stay a matter whose resolution can be found in another case.