Hezron Awiti Bollo v The Standard Group,Kenya Television Network,Mohamed Ali,John Allan Namu,National Environmental Authority & Ali Hassan Joho [2017] KEHC 1471 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYAAT NAIROBI

CIVIL CASE NO. 184 OF 2015

HON. HEZRON AWITI BOLLO................................PLAINTIFF/RESPONDENT

-VERSUS-

THE STANDARD GROUP..................................1ST DEFENDANT/APPLICANT

KENYA TELEVISION NETWORK....................2ND DEFENDANT/APPLICANT

MOHAMED ALI..................................................3RD DEFENDANT/APPLICANT

JOHN ALLAN NAMU.........................................4TH DEFENDANT/APPLICANT

NATIONAL ENVIRONMENTAL AUTHORITY...5TH DEFENDANT/APPLICANT

HON. ALI HASSAN JOHO

THE GOVERNOR MOMBASA COUNTY..........6TH DEFENDANT/APPLICANT

RULING

Before me is a Notice of Motion dated 8th September, 2017 filed by the Defendants under the provisions of Order 17 Rule 2 (3) of the Civil Procedure Rules and sections 1A, 1B and 3A of the Civil Procedure Act. The application seeks to have the suit filed by the Plaintiff on 18th May, 2015 dismissed for want of prosecution and costs of the application and the suit be awarded to the Defendants.

The Application is premised on the grounds on the face of the same and on Supporting Affidavit of KEVIN WAKWAYA an advocate in conduct of the matter on behalf of the defendants. The Plaintiff did not file a Reply to the Application and when it came up for hearing, the Defendants sought to rely on their supporting affidavit which I have considered. Dismissal of Suits for want of prosecution is governed by Order 17 Rule 2of the Civil Procedure Rules which provides;

“Any party to the suit may apply for its dismissal as provided in sub-rule 1. ” And sub rule 1 provides that “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.”

The last time when this matter was in court was on 18th May, 2016. Since then a period of one and a half years has lapsed with no step having been taken to prosecute the same. The Defendants have averred that the continued pendency of the suit is prejudicial them as the suit is a defamation suit which ought to be prosecuted while facts and evidence are still fresh. The defendants further aver that the Plaintiff’s suit ought to be dismissed as litigation is not a luxury especially to a person against whom offending material has been published and ordinarily who would be eager to have his name cleared as soon as possible.

The test for dismissal of a suit for want of prosecution is stated in the case of Ivita -v- Kyumba (1984) KLR 441. The test was expressed as follows:

“The test is whether the delay is prolonged and inexcusable and if it is, can justice be done despite such delay. Justice is justice to both the plaintiff and the defendant so both parties to the suit must be considered and the position of the judge too, because it is no easy task for the documents and or witnesses may be missing and evidence is weak due to the disappearance of human memory resulting from lapse of time; the defendant must satisfy the court that he will be prejudiced by the delay or even that the plaintiff will be prejudiced; he must show that justice will not be done in the case due to the prolonged delay on the part of the plaintiff.”

Justice is justice to both the Plaintiff and the defendant and I find the test in the case of Ivita (supra) most suitable in this application. On whether the delay was prolonged and inexcusable and whether justice can still be done despite the delay, it is my observation that the delay is long and the same has not been explained by the Plaintiff despite the fact that the application was served.

In the upshot, I find that the application has merits and the same is allowed with costs.

It is so ordered.

Dated, Signed and Delivered at Nairobi this 6th day of December, 2017

………………

L. NJUGUNA

JUDGE

In the presence of:-

..........………………..PLAINTIFF/RESPONDENT

………………………1ST DEFENDANT/APPLICANT

……………………...2ND DEFENDANT/APPLICANT

……………………...3RD DEFENDANT/APPLICANT

………………………4TH DEFENDANT/APPLICANT

………………………5TH DEFENDANT/APPLICANT

………………………6TH DEFENDANT/APPLICANT