Betty Angatia Mwenesi v Azmina Mulji & Southern Credit Banking Corporation [2015] KEHC 4053 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL CASE NO. 1285 OF 2002

BETTY ANGATIA MWENESI.................................................PLAINTIFF

VERSUS

MRS AZMINA MULJI...............................................1ST DEFENDANT

SOUTHERN CREDIT BANKING CORPORATION........2ND DEFENDANT

RULING

1. This ruling is the outcome of two applications.  The first is the motion dated 18th November 2014 taken out by Mrs Azmina Mulji, the 1st Defendant herein and the other is the motion dated 30. 04. 2014 taken out by Southern Credit Banking Corporation.  The same is supported by the affidavits of Buram associates.  In both applications the Defendants are seeking for the plaintiff’s suit to be dismissed for want of prosecution.  Those motions were served upon the Plaintiff but none attracted any response.  The Defendants were permitted to proceed exparte to prosecute those motions when it became apparent that the Plaintiff had failed to respond despite having been served.

2. Mrs. Ochieng, learned advocate for the 1st Defendant urged this court to dismiss the suit against the 1st Defendant for   want of Prosecution because the Plaintiff had failed for more three years to have the suit listed for hearing.

3. It is argued that the 1st Defendant will be seriously prejudiced in that she fay fall into the danger of losing witnesses to support  her defence. It is also alleged that the Plaintiff and her advocates appear to have lost interest in pursuing this case.  The 1st Defendant pointed out that it is on her initiative that the suit was fixed for hearing on 10th November 2011 but come that day and without any explanation the suit was not listed for hearing.  This suit has now been pending for over 12 years.

4. The 2nd Defendant on the other hand argued near similar grounds to those put forward by the 1st Defendant.  It is the submission of Miss Kageni learned advocate for the 2nd Defendant, that the Plaintiff has lost interest to pursue this suit.  It is further argued that a delay for a period of over 10 years is inordinate and inexcusable.

5. I have carefully considered the grounds stated on the face of the motions and the facts deponed in the supporting affidavits.  I have also taken into account the oral arguments put forward by learned advocates.  To begin with there is no dispute that the facts deponed in the supporting affidavits have not been controverted.  This court has no reason to doubt those averments.  Some of the averments made are that due to the prolonged delay, the 2nd Defendant is likely to suffer substantial risk in that it is no longer possible for it to have a fair hearing of the issues at hand due to the inordinate delay and some of its crucial witnesses have left employment.  This averment in my view gives a true reflection of what the 2nd Defendant is likely to face.  The 1st Defendant on her part has alluded that the continued existence of this suit for over twelve years is causing her undue and indefinite anxiety and further, it is prejudicing in that there is danger on her witnesses not being available at the time when the Plaintiff finally sets down the suit for hearing due to the said witnesses seeking greener pastures.  With respect, I agree with the Defendants’ submission that the Plaintiff’s inaction or the apparent reluctance to prosecute her case in court is inordinate and should therefore not tolerated by this court.  The record shows that the Plaintiff presented this suit in court on 30th July, 2002 seeking for inter alia judgment against the Defendants for general damages for defamatory words allegedly written by the 1st defendant while in the employment of the 2nd Defendant as the Debt Recovery Manager.  With respect, I agree with the Defendants that this being a defamatory suit, there is need to expedite its determination.  This in itself will promote a fair trial of the matter.

6. In the end I find the two motions to be well found.  They are allowed as prayed.  For the avoidance of doubt, this  suit is dismissed for want of prosecution with costs to the Defendants.

Dated and delivered in open court this 19th  day of June, 2015

J. K. SERGON

JUDGE

In the presence of:

………………………………………. for the Plaintiff

……………………………………….for the Defendant