Charles Musebe Nakhungu v Lowe Scanad Kenya Limited & Attorney General [2018] KEHC 491 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL CASE NO. 543 OF 2008

CHARLES MUSEBE NAKHUNGU………………….…………PLAINTIFF

VERSUS

LOWE SCANAD KENYA LIMITED…………………...1ST DEFENDANT

HON. ATTORNEY GENERAL……………………….…2ND DEFENDANT

RULING

The matter herein was on the 8th day of June, 2016 listed for Notice to Show Cause why it should not be dismissed for want of prosecution.  Both counsels have filed affidavits in response to the notice to show cause.

In an affidavit sworn by Charles Musebe Nakhungu on the 26th June, 2018, he has urged the court to list the matter for hearing and be disposed off after hearing both parties on merits.

He avers that, the system of giving dates in the registry has been frustrating and when dates are taken, cases are taken out of the cause list on technicality. He contends that the delay in prosecuting the matter is not intentional and that he is willing to have it finalized.

The first defendant filed an affidavit on the 25th June 2018 in which it is deponed that though the matter was filed in the year 2008 and the plaint amended on the 25th October, 2011 the summons to enter appearance was inexplicably not extracted until the 20th day of March 2012 and upon issuance, it was not served until the 16th April, 2012 more than 4 years after the suit was initially instituted.

That despite the defendant’s entry of appearance and filing of their defence, the plaintiff has remained inert in prosecuting the case and it has now been a decade since the suit was instituted.  It was further deponed that despite the fact that pleadings were closed in 2014, the matter has never been heard.

That as a result of the delay, the first defendant has lost contact with all its witnesses and will not be able to avail them for purposes of testifying in court.

The court has considered the two affidavits.  I have also perused the court record.  This fairly old matter was filed in the year 2009 and not much has gone on in the matter. It was last in court in the year 2015 when counsel for the plaintiff adjourned the same.  No action was taken after that, until the parties were served with a notice to show cause.  Though counsel for the plaintiff told the court that she attempted to take dates but was frustrated by the registry, there is no evidence that was placed before the court to that effect.

The 1st defendant has supported the dismissal and has averred that the plaintiff has neither been diligent nor purposeful in prosecuting the case. It states that it has suffered prejudice because it has lost touch with its witnesses and will not be able to avail them for purposes of testifying in court.

The court concurs with the first defendant that the plaintiff has not been diligent in prosecuting the matter.  No good reasons have been given why the same has not been prosecuted.  The defendant has shown the prejudice that it is likely to suffer in that, it has lost contact with all its witnesses.

I find that this is a matter that should be dismissed for want of prosecution and I do hereby dismiss the same.  Costs of the suit are awarded to the defendants.

Dated, Signed and Delivered at Nairobi this 4th day of October, 2018

.........................

L. NJUGUNA

JUDGE

In the presence of:

…………………………….. For the Appellant

……………………………...For the Respondent