1.The matter for determination before the court is an application dated May 19, 2022 wherein the applicant sought for orders that:i.The ex parte order of dismissal be reviewed and set aside.ii.The suit be heard anew.iii.Cost of the application be in the cause.
2.The application is premised on the grounds on its face and further supported by the affidavit of the applicant.
3.The 1st and 2nd defendants filed grounds of opposition stating that the application was made after an inordinate, insufficiently explained and inexcusable delay since the case was dismissed. In the same breadth, it was the respondent’s case that equity aids the vigilant and not the indolent and therefore, the application herein should fail. That the plaintiff’s claim to have been unwell since April 2014 was not supported by any documents to prove his claim and as such, the same was just an afterthought. Further, the respondents urged this court to dismiss the application with costs for the reason that an acquittal and/or withdrawal of a criminal charge does not constitute sufficient ground for instituting a case for malicious prosecution.
4.The applicant filed a supplementary affidavit and wherein it was deposed that the application herein has merits and that, during the illness aforesaid, it was not possible for him to fast-track the matter. The applicant further attached a treatment card dated February 14, 2017.
5.The court gave directions that the application be canvassed by way of written submissions and both parties complied with the directions on filing of submissions.
6.On the issue of delay, the respondent relied on the case of Ivita v Kyumbu  eKLR. It was submitted that the order for dismissal was made on September 18, 2017 while the application herein was filed on May 19, 2022 which is almost six years down the line. That, such a delay is prolonged and inexcusable as the plaintiff alleged that he had been unwell since 2013 without producing any evidence. Reliance was placed on the case of Savings and Loans Limited v Susan Wanjiru Muritu Nairobi (Milimai) HCSS No 397 of 2022. The respondents argued that a party seeking to reinstate a suit must demonstrate good faith and should file such an application without undue delay. As such, the delay occasioned by the plaintiff/applicant in filing the application herein is inexcusable.
7.The defendants submitted that granting the orders sought herein will be prejudicial to them as the suit was filed out of time, in that, the suit was filed in the year 2012 while the judgment in the criminal case was given on March 11, 2002 and hence the suit was already time barred pursuant to section 3(1) of the Public Authorities Limitation Act. Reliance was placed on the case of Mehta v Shah (1965) EA 321. That, that notwithstanding, the applicant/plaintiff failed to provide a reasonable excuse as to why he did not prosecute the suit in that, had he been vigilant, then he would have realized that the suit had been dismissed and as such, would have taken necessary steps at the time instead of filing the application herein. In the end, it was submitted that the suit herein is already time barred and as such the orders sought herein cannot therefore issue. The respondents/defendants therefore prayed that the application herein be dismissed with costs to them.
8.The plaintiff/applicant in his submissions stated that the application herein emanated from the suit after he suffered ills under the hands of the defendants/respondents. That the suit progressed well until when he fell ill and remained sick for such a long time thus rendering him incapable of further pursuing the matter. In that regard, it was his case that for the reasons aforesaid, he could not prosecute the matter. He submitted that the matter herein borders on issues of historical injustices and that it is clear that his rights were never protected by the government as ought to have been the case.
9.I have considered the application herein, the responses thereto and the written submissions by both parties and I find that the sole issue for determination in this application is whether the plaintiff’s suit should be reinstated.
10.Order 17 rule 2(1) of the Civil Procedure Rules, which governs dismissal of suits for want of prosecution, provides as follows:
12.Clearly, the statutory threshold set out under order 17 rule 2 of the Civil Procedure Rules is that a suit qualifies for dismissal for want of prosecution: if no application has been made or no step has been taken in the suit by either party for at least one year preceding the presentation of the application seeking dismissal of the suit.
15.My perusal of the record discloses the history of this matter as follows: that the applicant/plaintiff filed the suit herein sometime in the year 2012 against the defendants. Thereafter, the plaintiff/applicant went mute until the court dismissed the matter on September 18, 2017 for want of prosecution. The application herein was filed seeking for orders to set aside and/or vary the court’s orders dated September 18, 2017 for want of prosecution.
16.The question therefore is whether the orders sought herein can issue.
19.In the case herein, the applicant has submitted that he could not prosecute his suit for the reason that he fell sick and thus remained sickly for long and as such, he could not pursue the matter to ensure its expeditious conclusion. Looking at the record, the applicant attached a treatment card dated February 14, 2017. And as already noted that the suit had been lying before this court without being prosecuted for five (5) years before it was dismissed. The applicant has failed to explain why even assuming that he was sick as shown by the treatment card, why it took him such a long period of time to make an application seeking for the orders sought herein. The treatment card that was annexed is for February 14, 2017 but the application herein was made in May 2022. The applicant did not produce before this court any further evidence explaining why he took a lot of time to prosecute his suit save for that one treatment card which in my view does not give a proper explanation for this court to grant his prayers.
21.Further, I note that the suit was filed hopelessly out of time.
22.In my view, I find no sufficient reason to warrant setting aside of the orders of the court that were made on September 18, 2017.
23.The application herein is not merited and the same is dismissed but no order as to costs.
24.It is so ordered.