The Applicants’ case.
3.The Applicants stated that the matter was last in court on July 21, 2021 when this court issued a Ruling in respect to the Respondent’s Notice of Motion Application dated December 7, 2020. In the Ruling, the court restrained the Defendant from selling or otherwise disposing of the suit property and also compelled the Defendant to supply the plaintiff a current statement of Account as a current evaluation of Bomet Township/114. That ever since the Respondent got the orders, it has not taken any steps to fix the case for hearing.
4.It was the Applicants’ case that they have been greatly prejudiced by the delay occasioned by the Respondent. That the delay was inordinate, inexcusable and manifestly excessive in the circumstances.
5.The Applicants opined that litigation had to come to an end and it would be in the best interests of justice that the suit be dismissed for want of prosecution as it was apparent that the Respondent was not interested in prosecuting the same.
6.The Plaintiff filed a Replying Affidavit dated November 14, 2022 sworn by Frankline Rono. The Plaintiff stated that it was willing to settle the balance of Kshs 8,801,999.97/= in satisfaction of its contractual obligations to the 1st Applicant. That dismissing the suit would be a grave injustice to it since it had paid a total of Kshs 36,652,894.20/= and was left with a balance of Kshs 8,801,999.97/=.
7.It was the Respondent’s case that the delay was occasioned by the fact that it was pursuing an out of court settlement with the Applicant through their branch manager in Kericho. That they had visited the said branch severally over the past year with the intention of settling only to be informed that the Applicants and lodged an application for the dismissal of the suit.
8.The Respondent prayed that this court allows them to prosecute the matter so that it is not driven away from the seat of justice. The Respondent also undertook to ensure compliance of any conditions/orders issued.
9.On November 15, 2022, I directed that the present Application be canvassed by way of written submissions.
The Applicants’ Written Submissions.
10.The Applicants submitted that the guiding criteria to be applied in considering whether or not a suit should be dismissed was articulated in the cases of Ivita vs Kyumbu (1984) KLR 441 and Nzoia Sugar Company Limited vs West Kenya Sugar Limited (2020) eKLR.
11.It was the Applicants’ submission that the matter was last in court on July 21, 2021 when the Respondent got a temporary injunction preventing the sale of Bomet Township/114. That since then, the Respondent had not made any attempts to prosecute the case. It was the Applicants further submission that what amounted to an inordinate delay could not be measured with exactness and that for the purpose of this application, inordinate delay was delay which was beyond the acceptable limits in the prosecution of cases. They relied on Mwangi S Kaimenyi vs Attorney General & another (2004) eKLR.
13.The Applicants submitted that the Respondent was misleading the court when it stated that it was pursuing an out of court settlement. That the Respondent did not attach any annextures to demonstrate that there was communication between them as alleged and they relied on Mukavi Ways Co Limited vs Family Bank Limited (2020) eKLR. The Applicants further submitted that it was unprofessional for the Respondent to by-pass the advocates on record if at all it engaged with the 1st Applicant’s branch manager.
14.It was the Applicants’ submission that once the Respondent got the temporary injunction, it went to slumber and it had been enjoying the orders to their detriment. That the 1st Applicant continues to be prejudiced by the Respondent’s delay in prosecuting the suit. They relied on Peter Kipkurui Chemoiwo vs Richard Chepsergon (2021) eKLR.
15.The Applicants submitted that when the temporary injunction was issued, it was forced to halt its efforts in recovering the outstanding Kshs 8,801,999.97/=. That this amount continued to accrue interest at contractual terms. The Applicants further submitted that they had incurred huge costs in defending a suit that the Respondent was unwilling to prosecute.
16.Despite this court’s directions and time extension granted to the Respondent to file their written submissions, it has failed to do so.
17.I have gone through and considered the Notice of Motion Application dated July 29, 2022, the Replying Affidavit dated November 14, 2022 and the Applicants Written Submissions dated February 6, 2023 and the only issue for determination is if the Applicants have made out a case for the suit to be dismissed for want of prosecution.
18.The law on dismissal of suits for want or prosecution is anchored in Order 17 Rule 2 of the Civil Procedure Rules which provides 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.(3)Any party to the suit may apply for its dismissal as provided in sub-rule 1.(4)The court may dismiss the suit for non-compliance with any direction given under this Order.(5)A suit stands dismissed after two years where no step has been undertaken.(6)A party may apply to court after dismissal of a suit under this Order.
22.The Applicants therefore have the burden of proving that there was inordinate delay by the Respondent in prosecuting the suit, whether the delay was excusable and the prejudice they will suffer because of the delay.
23.The Applicants have stated that the matter was last in court on July 21, 2021 when this court granted the Respondent a temporary injunction. That ever since it got the injunction, the Respondent has gone to slumber. In the said Ruling, I granted prayers 3 and 4 of the Notice of Application dated December 12, 2020 which restrained the Applicants or their agents from selling or transferring Bomet Township/114 pending the hearing and determination of the suit. I also ordered the 1st Applicant to supply the Respondent herein a current Statement of Account and a current Valuation Report for Bomet Township/114.
24.The present Application was filed on August 1, 2022. By my count, between the last activity in the file which is July 21, 2021 and the date for the current Application was filed is slightly more than one year which falls within the ambit of Order 17 Rule 2 of the Civil Procedure Rules. The question then becomes whether the one year was enough to be considered an inordinate delay. As was stated in the Vintage Investments Limited (supra) case, what is inordinate delay or not must depend on the facts of each particular case. I am guided by the Court of Appeal in Cecilia Wanja Waweru vs Jackson Wainaina Muiruri & another (2014), eKLR where it stated that 'There is no set rule as to what constitutes inordinate delay.
26.In the present case, the Respondent got a temporary injunction that restrained the Applicants from interfering or selling the Respondent’s charged land number Bomet Township/114. The Applicants wanted to sell the land to recover Kshs 8,801,999.97/=, an amount that the Respondent owed in arrears to a loan facility he was loaned by the 1st Applicant. The temporary injunction was to be in force until the main suit was heard and determined but the Respondent went into slumber deliberately enjoying the temporary orders to the Applicant’s detriment and against the spirit with which the temporary orders were issued. The arrears in question are of a significant nature and the delay of one year in this case, was therefore inordinate.
27.The Respondent stated that the reason for the one-year delay was that it was engaging with the 1st Applicant’s branch manager in Kericho with a view of having an out of court settlement. I have gone through the Respondent’s Replying Affidavit and there is no evidence attached to back up its claim. It is trite law that he who claims must prove it. This court has no way of ascertaining the Respondent’s claims. It is clear that the Respondent had failed to take steps towards having the suit set down for hearing. I agree with the Applicants’ submission that the Respondent was trying to mislead this court. It is my finding therefore that the reason given for the delay was not convincing at all. It was not excusable.
28.The courts have previously held that in an Application for dismissal, such as the present one, an Applicant is expected to demonstrate, in specific terms the prejudice he or she or it stands to suffer. In Mwangi S Kimenyi (supra), it was held that:-
30.In this case the Applicants have stated that they would be highly prejudiced by the delay in prosecuting the suit. This bearing in mind the outstanding loan owed by the Plaintiff. I have perused the court record and I observe that both parties were not keen in the expeditious disposal of this suit. Though the Plaint was filed on December 7, 2020, to date there is no statement of defence filed. There has been no effort to set down the matter for Directions on hearing. There’s also no evidence of compliance by either partly of this court’s order for the Defendants to serve the Plaintiff its current statement of Account. The prejudice to be suffered by the Defendant is therefore not demonstrated.
31.I must however point out that the plaintiff must demonstrate seriousness in his suit. The plaintiff must show that they did not file the suit only for purposes of obtaining an injuction. I associate myself with the Sentiments of Musyoka J In Nzoia Sugar Company Limited vs West Kenya Sugar Limited (2020) eKLR where he stated that: -
32.In the end, having weighed the respective interests of the parties, I am persuaded not to dismiss the suit for want of prosecution. I exercise discretion to allow the parties ventilate their case on merits. Consequently, I direct that the suit be set down for Directions within 14 days of today.
33.The Application is thus dismissed. Costs shall be in the suit.