Moses Otsyula v Children of God Relief Institute [2015] KEHC 7711 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

CIVIL CASE NO.  1652 OF 2002

DR MOSES OTSYULA …………………….…………….PLAINTIFF

VERSUS

CHILDREN OF GOD RELIEF INSTITUTE …………….DEFENDANT

RULING

This  file is  a consolidation  of the suits HCC 1652 of 2002 wherein the plaintiff  is Dr Moses Otsyula suing  Children  of God Relief Institute  a.k.a  Nyumbani Watoto  Wa Mungu  claiming for  general damages  of character; and HCC 318 of 2004  wherein the  plaintiffs –Children of God Relief  Institute  and Rev. Dr. Angelo D’ Agostino, SJ, MD sued  Nation Media Group Ltd  and Dr Moses Otsyula  seeking for  general damages; exemplary and aggravated damages; injunction; and  special damages  arising  from alleged  defamatory  matter published  by the  1st defendant  at the instance of the 2nd  defendant and concerning  the plaintiff.

On 8th October 2007, the two suits were  consolidated  following  an application dated 19th April 2007. On 26th July 2010, the parties  appeared before Dulu  J and Mr Kilonzo  Junior  for the plaintiff in HCC 213/2005 formerly HCC 318 of  2005 reported that  the two suits had indeed  been  consolidated way back in 2007 but  that ever since, the  plaintiff in  HCC 1652/2002 had been unwell  with  a stroke, making  it impossible  to proceed with the  hearing because of the consolidation order.  He proposed that the two cases do proceed to hearing separately.  The matter  was nonetheless adjourned  to enable  the parties  advocates  discuss  and agree  on the way forward and on 15th October 2010 the same issue  was raised.  On 12th November 2010 the parties  were expected  to reach  and record  a consent on separation of  the two  cases to allow one matter  to precede  the other  owing  to the ill health of Dr Moses Otsyula but  no consent  was forthcoming  so it was stood  over generally, with  the court  directing  the plaintiff to  apply for separation of suits.  Since then, no action or steps  were taken by either  party to have  the suits heard  and it is that  delay or inaction that prompted  the 1st defendant/applicant to file the  present  application dated  24th October 2014 seeking to  dismiss   the suit for  want of  prosecution with costs to the 1st defendant  Nation Media Group Ltd.

The application  is predicated  on the  grounds  that since  12th November 2010, no  steps  or action  had been taken  by the  plaintiffs  to set down the  suit for hearing; the 1st defendant  continues  to suffer  anxiety due to  the pendency of the suit; the delay in prosecuting the suit will greatly prejudice  the 1st defendant  in terms  of the accuracy of witnesses  testimony  and their availability  as the matters  concern  publications  made over 10 years ago; and  that it is  fair  and just  that the application be  allowed.

The application is also supported by  an affidavit  sworn by Sekou Owino head of  Legal of the 1st  defendant/applicant  Nation Media Group Ltd reiterating  the history of the two  suits  following their  consolidation on  8th October 2007  by Honourable Justice Onyacha  and that  since 12th November 2010  no steps  have been taken by the  plaintiffs  to set down the matter  for hearing  and disposal.  Mr Owino believes that the  plaintiffs  must have  lost interest  in their claims  which was prejudicial to the  1st defendant hence it  was fair, just  and expedient  that  the suit  be dismissed for want of prosecution.

The 1st plaintiff/respondent  filed a  replying affidavit  sworn by Sister Mary Owens who deposes to the facts as  set out  by the  1st defendant adding  that there  was an attempt  to  have the mater  settled  out of  court  between  the plaintiff  Dr Otsyula  and the institute  but the  latter  declined.  Further  that their  advocate  had tried to set down the suit for hearing  on several occasions as late as 3rd December 2013  hence  she was opposed  to the application seeking to dismiss the suit for want  of prosecution as the 1st plaintiff  was not  responsible  for the delay, since  it is  on record  that the Dr Otsyula  was ill and  could not  instruct  his advocates  in the matter.

Dr  Otsyula  did not   file any replying  affidavit  or grounds of opposition  as he was said to be stricken with a stroke  and incapable  of giving  instructions. HIS ADVOCATE Mr Miyare nonetheless was allowed to submit on issues of law only.

The application was canvassed by way of oral submissions with Mr Khaseke advocate representing the applicant, Mr Miyare representing Dr Otsyula and Miss Makobu acting for the respondent in HCC 213/2015.  Mr Khaseke reiterated  the  grounds  in support of the application and the supporting  affidavit, maintaining  that there  had been  inordinate  delay in setting  down the suit  for hearing.  He blamed  Dr Otsyula’s  counsel for their failure  to apply  to court for separation  of the two suits  to allow one case  to proceed  which delay had prejudiced  the 1st defendant  as the memory of  witnesses fade.

Miss Makobu opposed the  application  on behalf of her client  the CHILDREN OF GOD RELIEF INSTITUTE  arguing that her client  was not  responsible for the delay in having  the suit disposed  of as Dr Otsyula  was reportedly  so ill that he was incapable  of giving instructions  even on a consent   to separate  the two files.  She also submitted that in 2013 they tried to set down the matter for hearing, besides   the parties attempting a negotiated out of court settlement which did not bear fruit.

Mr Miyare for Dr Otsyula submitted that the situation of this case was dire in that  should the suit as consolidated be dismissed, innocent parties will be prejudiced. That his client was unable to give instructions and urged the court not to dismiss the suit as consolidated since Dr Otsyula deserved a chance to be heard in the matter.

In a brief  rejoinder Mr Khaseke  submitted that the letter  dated  3rd December  2013  was never served  or copied  to them  and  neither was there  evidence  of  what transpired  on 6th December 2013.  He maintained that the suits could not be pending forever and that is the reason why the court directed that an application be made to separate the consolidated suits.  Mr Khaseke was categorical that his client  was not opposed  to the suit being  maintained  against the  2nd defendant  Dr  Otsyula  who is  also the  plaintiff  in HCC 1652/2002 since  the  suits continue to have separate numbers.

I have carefully considered the application by the 1st defendant Nation Group Ltd, the replying affidavit by the 1st plaintiff and oral submissions by the parties’ respective counsels.

The only issue for determination is whether the suits herein as consolidated should be dismissed as against Nation Media Group Ltd for want of prosecution.

The power to dismiss  a suit for  want of prosecution is donated  by Order  17  Rule  2 of the Civil Procedure (where no action or step taken  for over one year and no cause is shown,  Sections 1A,1B,3A of the Civil Procedure Act and Article159(2)(b) of the Constitution, which provisions  all abhor delayed justice  and command  that  justice shall be done without  undue delay.  Where there is delay, undoubtedly, delay defeats equity and prejudices a party’s legitimate expectation that the dispute shall be heard and determined expeditiously.

An application to dismiss suit for want of prosecution is reminiscent of a hunter being the hunted for inactivity.  The power to dismiss suit for want of prosecution is nonetheless a discretionary power which should be exercised   judiciously.  See  Moses Muriira Maingi & 2 Others  v Maingi Kamuru & Another Nyeri CA 151 of 2010, citing   with approval  Chesoni J ( as he then was) in Ivita  vs Kyumbu (1984) KLR 44 that :-

“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 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, or witnesses may be missing   and evidence is weak due to the disappearance of human memory resulting from lapse of time.

The defendant must however satisfy the court that he will be prejudiced by the delay or 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 before the  court  will execute  its discretion in his favour  and dismiss  the action for want of prosecution.  Thus , even if delay is prolonged  if the court  is satisfied  with the  plaintiff’s explanation or excuse  for the delay the action will not be dismissed, but it will  be ordered  that  it be set down for  hearing  at the  earliest  available  time.”

The above test can be summarized as under in Halsbury’s Laws of England VOL. 37 paragraph 448:

“The power to dismiss an action for want of prosecution, without giving the plaintiff the opportunity to remedy his   default, will not be exercised unless the court is satisfied-

That the default has  been intentional and contumelious; or

That  there has been prolonged  or inordinate  and inexcusable delay  on the part  of the plaintiff or his lawyers, and  that such delay  will give rise  to a  substantial risk  that it  is not possible  to have a fair  trial  of the issues  in the action  or is  such as is likely to cause  or to have  cause serious  prejudice  to the defendants  either  as between  themselves  and the plaintiff or between each other  or between  them and a third party.”

This court  notes that the suits  herein as consolidated are fairly old and there have been efforts  in the past  to have  them heard  and concluded  including as at December  2013  after it  became clear  that a negotiated  out of  court settlement effort by Dr Otsyula with  the Children  of God Relief  Institute  failed  to bear  fruit.  There  is also  every indication that immediately  after consolidating the two suits, Dr Otsyula  who is a  plaintiff  in one  suit  and a co-defendant with the applicant herein in the other suit  fell ill.  He developed  a stroke which  has disabled him from furnishing  his advocates  with instructions  in the matter  and  all this  happened  before  directions on the conduct of consolidated  suits could be given by the court. It is therefore not possible to tell  who is the plaintiff and who is the defendant since  those positions overlap  for some  of the parties.

Dismissal of suit for want of prosecution is intended to prevent delayed justice or injustice and or abuse of court process.  It is also  trite  that in any civil suit, it is  the plaintiff who is  in pursuit  of a remedy, that he should take  all the steps  at his disposal to achieve  an expeditious determination  of his claim.  He should not b e guilty of laches.  On the other hand, when  the plaintiff fails to bring  his  claim to a speedy conclusion, a defendant ought  to invoke  the process  of court towards that end  as soon as is convenient  by either  applying  for its dismissal or setting down  the suit for hearing.  Delay in deprecated by the law and more so, Article 159 of the Constitution which commands that justice shall be administered without undue delay. And it is the duty of the plaintiff to get on with the case.  It is also trite  that every year that passes  prejudices  the fair trial as witnesses  may have died, documents  mislaid, lost, destroyed  and the memory tends to  fade( see Dickson J in Nilan v Pater (1969) EA Page  341.

Nonetheless, it is also settled that delay is a matter to be decided on the circumstances of each case where a reason for the delay is offered,the court should be lenient and allow the plaintiff an opportunity have his case determined on merit (see AGIP (K) Ltd v Highlands Tyres Ltd (2001) KLR 630.

Whereas  dismissal of a suit  for want of prosecution  is a matter of discretion of the court, a court of law should  always avoid  acting intuitively on such application  or hastily dismiss  a suit  for want of prosecution, but  rather, it should make further inquiries  into the matter to  establish  whether

There has been inordinate delay on the part of the plaintiff in prosecuting the case.

The delay is intentional, contumelious and therefore  inexcusable;

The delay is an abuse of the court process.

The delay gives rise to substantial risk to fair trial or causes serious prejudice to the defendant.

What prejudice will the dismissal occasion to the plaintiff?

The plaintiff has offered a reasonable explanation for the delay.

Even if there has been delay, what does the interest of justice dictate; lenient exercise of discretion by the court.

The delay herein is from 12th November 2010 when the case was stood over  generally, which  is over 4 ½ years. However, there  was an attempt  on 3rd December  2013  to invite  the defence  to fix a  hearing  dated but there  is no evidence  that parties  attended  court on  6th December 2013  to fix that date.  Even if that were not to be the case, the record  shows that since 2011 Dr Moses Otsyula suffered  a stroke  and cannot therefore  testify.

There has been no attempt to file  an application  to enjoin a guardian ad litem to assist  in prosecuting  the suit on  behalf of  Dr. Otsyula  who is also a defendant in one of the suits as consolidated.  The plaintiff in the other   matter has equally not set down the matter for trial and since they  are also defendants and plaintiffs at the same time in different suits which are consolidated, they are webbed  together in an inseparable cage.

In my humble view, therefore, If the ‘suit’ is dismissed, in the  absence of clear directions  as  to whose  ‘suit’ is being dismissed, I have no doubt in mind  that  an injustice  will be occasioned  to the parties hereto.  This court is alive  to the Constitutional  dictates  of Article  159 of the Constitution  to render  substantive  justice to all parties  to a dispute  without  undue delay, which  principle, in my  view, is  overridden  by the fundamental unlimited  right to  a fair  hearing and  the right to  access  justice.

Albeit  there has been delay  in setting  down this matter for hearing  this court appreciates  the dilemma in  which the  parties  find themselves in.  It is  not disputed  that one of the parties  is  ill and  cannot conduct  proceedings on his own accord.  On the other hand, the court while consolidating the two suits never gave directions as to how such a consolidated suit should be conducted.  It has not been shown that the  delay, though  inordinate, is deliberate, contumelious and, therefore, inexcusable .  It  has  also not been shown  that the  delay  is an abuse of the court process.

This court is  also alive  to the fact that  claims  in both suits  as consolidated  are hinged  on defamation of character, which  tort is  personal in nature, such  that on the  demise  of a claimant, the cause of action abates  as it does not  survive  a deceased  claimants

In my view, in as much as there  is delay, the interest  of justice  can still be served if the plaintiffs are given an opportunity to prosecute their case.  I also  find   that  the plaintiffs  will be  prejudiced if the  suit is dismissed  as it is not  denied that  Dr Otsyula, one of the plaintiffs is currently  incapable  of prosecuting  the suit on his own.  That explanation  for the delay in my view  is reasonable  and acceptable  to the court which must  always accord parties a second chance  and which in  my view is not a lavish  exercise  of discretion.

The upshot of all the aforesaid is that the application on hand seeking for dismissal of the “suit” for want of prosecution is declined.

Nonetheless, to avoid a situation where pleadings are archived in court forever.  I direct that either party may apply for separation of the  suit herein as consolidated  as there are special  circumstances  to warrant such  separation.  I further direct that   counsel for  Dr Otsyula  do seek  instruction from the ailing doctor’s  next  of kin with  a view  to filing an  appropriate  application  within the  next 30 days  from the date  hereof.

Each party to bear their own costs of this application.

Dated, signed   and delivered in open court at Nairobi this 15th day of September 2015.

R.E. ABURILI

JUDGE

15. 9.2015

Coram R.E. Aburili J

C.A. Samuel

Mr Khaseke for the applicant

Miss Makobu for respondent

Court –Ruling read and delivered in open court at 2. 30pm.

R.E. ABURILI

JUDGE

15. 9.2015