Christopher Murungaru v Macharia Gaitho & Nation Media Group Limited [2017] KEHC 1061 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

HIGH COURT CIVIL CASE NO. 1005  OF 2004

HON. DR. CHRISTOPHER MURUNGARU...............PLAINTIFF

VERSUS

MACHARIA GAITHO.......................................1ST DEFENDANT

NATION MEDIA GROUP LIMITED................2ND DEFENDANT

RULING

The plaintiff filed this suit against the defendants on 24th September, 2004 claiming damages for defamation.  The defendant denied the plaintiff’s claim.  From the record, as early as November, 2009 the parties had agreed on the statement of issues to be determined.  For some reason, this case has never started. On two occasions the defendants filed applications to have the suit against them dismissed for want of prosecution.

The first application was filed on 4th August, 2006 while the second which was dated 1st April, 2015 was filed on 19th May, 2017.  It is supported by an affidavit sworn by the legal officer of the 2nd defendant alongside the grounds on the face of the application. The application is opposed and there a replying affidavit sworn by the counsel for the plaintiff.  This ruling relates to the second application.

Counsel on record have addressed the court orally on the subject. Under Order 17 Rule 2 (1) and (3) of the Civil Procedure rules cited by the counsel for the defendants, the court may grant the orders sought by the defendants.  The defendants have also cited Sections 1A, 1B and 3A of the Civil Procedure Act.

It is true that for more than 10 years the plaintiff has not taken steps to prosecute the suit against the defendant.  In fact the last entry relating to the hearing was made on 22nd March, 2010 when the hearing was taken out by consent because both parties were not ready to go on.  The next hearing date was to be 21st November, 2011 but the record does not show what transpired on that date.

The replying affidavit has alluded to a related case namely HCCC No. 446 of 2006 which has not been completed and the plaintiff is awaiting the determination thereof.  That averment has not been contradicted by the defendants. Counsel for the plaintiff is aware of the constitutional and other statutory requirements for expeditious disposal of cases and pleads that the mistake or oversight on the part of counsel should not be visited upon the litigant.

I have taken into consideration the material placed before me by both counsel.  The striking out of a suit is a drastic measure which should be applied cautiously.  This is because such a step results in driving a litigant out of the seat of justice without a hearing.  The courts should endeavour to sustain a suit rather than dismiss it.

Justice however, must look at both sides.  Any defendant facing a suit would be anxious to go over it and many a times any delay compromises the quality of evidence to be adduced.  Witnesses may disappear or even die.  Documents may be destroyed and memory may fade.  That notwithstanding, when all factors are taken into consideration, I am persuaded that the plaintiff should be given a chance, albeit with strict timelines, to move the matter forward.

Having said so, I decline to dismiss this suit but the parties shall comply with Order 11 of the Civil Procedure Rules within 60 days from today, and have the matter listed for hearing within 60 days after the said compliance.  Failure to comply with the said directions will lead to the dismissal of the suit without recourse to the court.  The defendants shall have the costs of this applicantion in any event.

Dated, signed and delivered at Nairobi this 7th Day of December, 2017

A. MBOGHOLI MSAGHA

JUDGE