Lawrence Kamundi Gichunge v Samuel Murega M'nkumbuku [2015] KEHC 3861 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MERU

CIVIL SUIT NO. 49 OF 2012

LAWRENCE KAMUNDI GICHUNGE......................PLAINTIFF

VERSUS

SAMUEL  MUREGA M'NKUMBUKU....................DEFENDANT

R U L I N G

This ruling concerns two related causes.  The first one is a notice of Motion filed by the defendant and dated 20th  September, 2014.  It seeks the dismissal of the suit for want of prosecution and costs.  It states that  after a lapse of more than one year, the plaintiff had not set down the suit for hearing and the defendant ascribes this situation to a lack of willingness on the part of the plaintiff to prosecute the suit. One of the grounds proffered  in support of the application  opines that “no prejudice whatsoever or at all shall  be occasioned on the Plaintiff upon dismissal of the suit”.  Another ground rightly states that litigation must come to an end.

The other related cause  concerns a notice to show cause why the  suit  herein should not be dismissed for want of prosecution in terms of Order 17 of the Civil Procedure Rules.  The Notice to show cause was issued at the behest of this court.

Both matters were heard on 15/12/2014.  Miss Kiome for the Plaintiff  submitted that her client had shown cause via a replying affidavit dated 8/12/2014.  In the affidavit  she explained that after the suit was filed by  Mr. Isaboke, the plaintiff's  Advocate, no date could be obtained  at the Registry as  this court's Deputy Registrar had directed that only old matters could get hearing dates.  The Plaintiff also said that later on, Mr. Isaboke  left active practice and joined the Office of Director of Public Prosecutions as a State Counsel,  now working in Lamu County.  This left the Plaintiff  in a lurch. Miss Kiome said that  the Plaintiff was seriously  desirous of prosecuting  this suit.

Mr. Omari submitted that the Plaintiff's  replying affidavit dated 8/12/2014 had not  shown cause as to why the suit  should not be  dismissed as it only amounted to an ascription  of blame upon the Plaintiff's former Advocate.  He argued that  he should have ensured that his advocate prosecuted   the suit . He asked the court to dismiss the suit.

I  agree  with Mr. Omari that it is the Plaintiff's duty  to gingerly and diligently pursue the process  germane to the  prosecution of  his case.  In my mind, there is no doubt that the way the Plaintiff has behaved in the prosecution of this suit evinces a veritable level of  indolence and carelessness.  This needed to be satisfactorily explained to the court.

It is in the public domain that the Deputy Registrar had directed the registry to  list

for hearing only old cases.  The notice that contained this directive was rather  unfortunate as it rendered  the implementation of the provisions of Order 17 of the Civil Procedure Rules difficult.  It has given litigants a cause to fall back upon in matters which were filed at a particular time. It is my view that  courts can not punish litigants when they are parties to situations which  they had not authored and the litigants are innocent.  In such cases litigants merit some benefit of doubt.

In the circumstances,  I find that cause has been shown to the satisfaction of this court that this suit should not be dismissed .  Costs will be in the cause.

The Plaintiff is directed to fully comply with Orders 3 and 11 of the Civil Procedure Rules within 30 days.  The defendant is directed to  fully  comply with Orders 7 and 11 of the Civil Procedure Rules within  30 days after service upon him of the Plaintiff's compliance documents.

The Plaintiff is directed to have this suit listed for directions within 90 days of the date this ruling is delivered.

It is so ordered .

Delivered in Open Court at Meru this 18th day of June, 2015 in the presence of :

CC:   Lilian /Daniel

Harun Gitonga for Plaintiff/Respondent

P.M. NJOROGE

JUDGE