JOHN GITHEHU KIARIE & 2 OTHERS V KAHIHU KINYANJUI [2013] KEHC 2703 (KLR)

REPUBLIC OF KENYA

High Court at Nairobi (Milimani Law Courts)

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JOHN GITHEHU KIARIE

JEREMIAH KIOI

JAMES F. NJENGA……………………………..….…………PLAINTIFFS

VERSUS

KAHIHU KINYANJUI……….....................................................DEFENDANT

RULING

This court in a ruling delivered on 29th March 2012 denied the Defendant the prayer sought in his Notice of Motion dated 20th July 2009 to have the Originating Summons filed herein dismissed. The court further directed the Plaintiffs to file and serve an amended Originating Summons within 30 days of the date of the ruling, and in default the Defendant would be at liberty to apply for judgment.

The Plaintiffs have now filed a Notice of Motion dated 11th September 2012 seeking orders that the time given to the Plaintiff’s to file and serve an amended originating summons be enlarged by a further 30 days. The main ground for the application as explained in the supporting affidavit sworn on 11th September 2012 by Nelson Muturi Harun, the Plaintiff’s Advocate, is that the ruling referred to herein above was fixed for delivery on 12th April, 2012 during the High Court vacation, and the Plaintiffs were not aware that the said ruling was delivered on an earlier date, the 29th March 2012. Further, that the Defendant irregularly extracted the orders unilaterally without informing the Plaintiffs.

The Defendant opposed the Plaintiff’s Notice of Motion in a replying affidavit sworn on 26th September 2012 stating that the said Notice of Motion was incompetent, had no merit, was incapable of being granted and was made after inordinate and unexplained delay. The Defendant in turn filed another Notice of Motion dated 17th September 2012 seeking that the Originating Summons dated 22nd March 1989 be struck out or dismissed on the grounds that it was frivolous, vexatious and an abuse of the process of court, and that the Plaintiffs have not taken any steps to comply with the orders of the court issued on 29th March 2012.

The Defendant’s application was opposed in a replying affidavit sworn by the Plaintiff’s Advocate on 19th March 2013 in which allegations were made about the Defendant’s conduct of the case, which were answered in a supplementary affidavit sworn by the Defendant’s Advocate on 27th March 2013. I shall not belabor to deal with the allegations made as this court is not the proper forum to address the professional conduct or otherwise of advocates in the handling of their briefs.

The parties canvassed their respective Notices of Motion by way of written submissions. The Plaintiffs’ counsel argued in submissions dated 19th March 2013 that the Defendant extracted the orders of 29th March 2012 without complying with the mandatory provisions of Order 21 Rule 8 of the Civil Procedure Rules, and urged the court to allow the Plaintiff’s application for extension of time. The counsel relied on the decisions in Muchina vs Muchina (2003) KLR 613, andRuhara vs Ruhara(2002)(2) KLR 663in this regard.

Counsel for the Defendant argued in submissions dated 12th March 2013 and 4th April 2013 that the Plaintiffs are frivolous and vexatious litigants, and that the continued pendency of this suit for a period of over 20 years is causing prejudice, injustice and embarrassment to the Defendant. Further, that the Plaintiff’s application dated 11th September 2012 offends the provisions of section 7 as it is res judicata as the Plaintiffs have made various previous similar applications, and that they have not explained the delay in filing the said application.

I have given the pleadings and submissions filed herein careful consideration, and find that the main issue for determination is whether discretion can be exercised in favour of the Plaintiffs to extend the time for filing an amended Originating Summons. Determination of this issue either way will resolve the Defendant’s Notice of Motion. The issue raised by the Defendant as to the previous applications by the Plaintiffs and whether this application is thereby res judicata was addressed by this court in the ruling delivered in this suit on 29th March 2012,

This court is guided by various provisions of the Constitution and the law on the issue of extension of time. Article 159(2) of the Constitution obligates this court to dispense substantive justice and not to give undue regard to technicalities. This court also has inherent power under section 3A of the Civil Procedure Act to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.

In addition section 95 of the Civil Procedure Act provides that where any period is fixed or granted by the court for the doing of any act prescribed or allowed by this Act, the court may, in its discretion, from time to time, enlarge such period, even though the period originally fixed or granted may have expired. Order 50 Rule 6 of the Civil Procedure Rules specifically provides as follows in this regard:

“Where a limited time has been fixed for doing any act or taking any proceedings under these Rules, or by summary notice or by order of the court, the court shall have power to enlarge such time upon such terms (if any) as the justice of the case may require, and such enlargement may be ordered although the application for the same is not made until after the expiration of the time appointed or allowed:

Provided that the costs of any application to extend such time and of any order made thereon shall be borne by the parties making such application, unless the court orders otherwise.”

The Plaintiff’s application is therefore properly before the court, and it is noteworthy that under Order 50 Rule 7 of the Civil Procedure Rules the parties could have entered into a consent in writing on enlargement of time and thereby dispensed with the applications made herein.

I have perused the court record  and note that on 31st January 2012 the ruling on the Defendant’s Notice of Motion dated 20th July 2009 was reserved for 12th April 2012. However, upon realizing that the said date would fall during the High Court vacation, notice of the ruling was published on the cause list for 29th March 2012, and the ruling was delivered on that date. The court record further shows that on that date Mr. Echesa was present in court holding brief for Mr. Miriti, the Advocate for the Defendant. The Plaintiffs’ Advocate were however not present in court.

I find that it is not the Plaintiffs’ fault that the ruling was delivered on an earlier date, and there was indeed an omission on the part of the court for failing to serve notice on the parties in good time of the changed date of the ruling. The Plaintiff’s application for extension of time is therefore merited, and I allow the Plaintiffs’ Notice of Motion dated 11th September 2012 for the reasons given in the foregoing. I hereby accordingly extend the time for filing and serving of the amended Originating summons for 30 days from the date of this ruling as prayed. The Defendant is also given leave to file and serve a Replying Affidavit if need be within 30 days of service of the amended Originating Summons.

With regard to the Defendant’s Notice of Motion of 17th September 2012, the findings herein above dispose of the said Notice of Motion, save for the additional order that in the event of the Plaintiff’s default in filing and serve the Originating Summons within the 30 days, the suit herein shall stand dismissed.

Each party to bear their own costs of the two Notices of Motion.

Orders accordingly.

Dated, signed and delivered in open court at Nairobi this ____6th___ day of_____June____, 2013.

P. NYAMWEYA

JUDGE

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