GEORGE MAIGO WAWERU & 2 OTHERS V NATION MEDIA GROUP LTD [2013] KEHC 3776 (KLR)

REPUBLIC OF KENYA

High Court at Nairobi (Nairobi Law Courts)

Civil Case 1016 of 2003 [if gte mso 9]><![endif]

1. GEORGE MAIGO WAWERU

2. WILLY WAWERU MAIGO

3. DANIEL NGANGA GEORGE….………………..………..…...PLAINTIFFS

VERSUS

NATION MEDIA GROUP LTD.....................................................DEFENDANT

R U L I N G

1. This is an application by notice of motion dated 2nd September 2008 (filed on 19th May 2009!) for an order to dismiss the Plaintiffs suit with costs for want of prosecution. It was brought under the then in place Order XVI, rule 5(d) of the Civil Procedure Rules (the Rules). Under that rule, if within three months after the adjournment of the suit generally, the plaintiff, or the court of his its own motion on notice to the parties, did not set down the suit for hearing, the defendant could either set the suit down for hearing or apply for its dismissal.

2.     The application is supported by the affidavit of one BARBARA LUNANI, the Defendant’s advocate.

3.     There is a replying affidavit sworn by the 1st Plaintiff in opposition to the application.  He says that the 3rd Plaintiff is his son while the 2nd Plaintiff was his father who died on 16th June 2004.  He has also deponed that he instructed one KIHORO CERERE of Messrs Cerere, Mwangi & Co., Advocates to act for the Plaintiffs; that he has subsequently leant that Mr Cerere left Kenya and is now resident in the United States of America since the year 2004; and that he believes that the suit was not prosecuted due to the fact that the Plaintiff’s advocate was not in Kenya.

4.     The Plaintiff’s suit is in defamation. The 2nd Plaintiff’s suit therefore died with him.

5.     As for the 1st and 3rd Plaintiffs, they must have filed suit so that their good names and reputation could be vindicated as soon as possible. That was on 2nd October 2003! By 19th May 2009 when the present application was filed, the suit had remained unprosecuted, nearly 6 years later.

6.     The 1st Plaintiff does not disclose in his replying affidavit when he or the 3rd Plaintiff leant that their advocate, Mr Cerere, had emigrated to the United States of America in 2004.   Nor does he state whether he or the 3rd Plaintiff made any enquiries or follow-ups at the offices of their advocates regarding their case. The explanation offered in the replying affidavit for the inordinate delay is casual and not detailed enough as to merit acceptance. It appears to me that the Plaintiffs simply lost interest in the suit.

7. I am satisfiedthat the long delay in prosecuting this defamation suit will render a fair trial of the action impossible. The Defendant will be prejudiced, and the suit should not be allowed to continue hanging over its head.

8.     In the circumstances I will allow the application. The 1st and 3rd Plaintiffs’ suit is dismissed with costs for want of prosecution. It is so ordered.

DATED AND SIGNED AT NAIROBI THIS 2ND DAY OF MAY 2013

H. P. G. WAWERU

JUDGE

DELIVERED AT NAIROBI THIS 3RD DAY OF MAY 2013

[if gte mso 9]><xml>

Normal 0

false false false

EN-US X-NONE X-NONE

</xml><![endif][if gte mso 9]><![endif][if gte mso 10]> <style> /* Style Definitions */ table.MsoNormalTable {mso-style-name:"Table Normal"; mso-style-parent:""; line-height:115%; font-size:11. 0pt;"Calibri","sans-serif"; mso-bidi-"Times New Roman";} </style> <![endif]