Nakuru Water & Sanitation Services v Board of Trustees, Agricultural Society of Kenya (Nakuru) [2014] KEHC 37 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAKURU

CIVIL SUIT NO.175 OF 2007

NAKURU WATER & SANITATION SERVICES…..PLAINTIFF

VERSUS

THE BOARD OF TRUSTEES, AGRICULTURAL

SOCIETY OF KENYA (NAKURU…......……...….. DEFENDANT

RULING

The  application dated 12/11/2013 is  made pursuant  to Order 17 Rule 2(1)  and (3),  and Order 51 Rule 1 Civil Procedure Rules  seeking that  the  plaintiff's suit  be dismissed for  want of  prosecution and costs of  the suit be awarded to the  defendant.

The reasons for seeking such orders are that:-

(a) The plaintiff has not made any application for taken any steps towards prosecuting this matter since it was last adjourned on 16th March 2011.

(b) No valid reasons exist for the inordinate inaction on the part of the plaintiff.

In  a supporting affidavit sworn by  the  Defence Counsel, the history of this suit is  set out  to  the  effect  that it  was filed  on  30/07/2007.  The last time it was in court was on   16/03/2011 when it came up   for hearing, but was adjourned generally because the   plaintiff was not ready to proceed.   Since March 2011, the  defence counsel has on  a  number  of   occasions  sent  reminders to  the plaintiff's counsel  to  fix  the  matter for  hearing,  to   no avail.

There was no response filed in respect of the application and the court directed the defendant's counsel to restrict his submissions to issues of law. Mr. Biko who appeared on behalf of the defendant argued that on 16/03/ 2011, the suit did not proceed because no discoveries had been

done and there was no compliance with  Order 11, so  the suit was not ripe for  hearing.  He blames the defendants for failing to carry out any discoveries.

Further that the defendant stands to suffer no prejudice if the suit is not dismissed as the plaintiff is  a public body, and public interest will be affected.

In response, Mr. Kisila  contends that Order 11 is  what makes it  a ground why   the suit should be  dismissed - because no  step, including preparing the  suit for  hearing, has  been taken, saying inaction for  seven years is inexcusable.

It is not in dispute that this suit was filed in the year 2007 and to date, it has not been heard.  A perusal of the record  shows  that  when  it   last  made an  appearance before a Judge on  16 / 03/2011 for  hearing, the counsel holding  brief  for  plaintiff's  advocate  indicated   to   the court:-

"Mr. Kipkoech is unable to proceed today.  We have yet to file our documents. We need at least one month to complete discovery."

Even then, Mr. Kisilah on behalf of the defendant complained that:-

"This is the oldest matter scheduled for hearing today.  This matter was filed 4 years ago… The matter was fixed for hearing last November 2010.  This too means they were ready, I made an effort and called my colleagues yesterday and they were not even aware of today’s hearing."

The court indulged the plaintiff’s counsel and granted an adjournment.  From that date, the file has been inactive. On 14th December 2011, the defence counsel wrote to the plaintiff's counsel requesting them to fix the matter for hearing or withdraw it, in the event that the plaintiff had lost interest.  The letter elicited no response.  Indeed even this application did   not seem to   jolt   the   plaintiff into action, as no reply was filed.

If the suit was premature for hearing, then what steps should the plaintiff (who was   the one   who brought the matter to court) have taken? I have perused the provisions of Order 11 vis a vis the provisions of Order 17 Rule 2 (1).

It is important to bear in mind that four years before the existence of Order 11 came into   force; the plaintiff had not taken any   serious steps towards settling down the matter for   hearing.   This means that the   loud refrain about non-compliance with Order 11 as a reason for not setting down the matter for hearing, in the earlier years, rings hollow.  However, even  if the  matter got  caught up in  the  2010 Civil  Procedure Rules then  the  objective  of Rule  11 of  the Civil Procedure Rules was to achieve expeditious disposal of cases and case management, and the realisation of the pre trial conference under Rule11 (3)  (2)  depends on  the  participation of  every   party and his  counsel to strictly comply - (Refer  to Rule  11  (7) (2)

This is further confirmed by Rule 11 (7) (3) to the effect that:-

"Any party or his advocate who willfully fails or omits to comply with the provisions of this Order shall be deemed to have violated the overriding objective as stipulated in section 1A and 1B of the Act.  . . ."

For purposes of this  suit, it was  incumbent  on  the plaintiff's  counsel  to   file   the  documents  it   required, expeditiously,  so   as to  have  the   matter  set  down for hearing.  They requested for a month to do so, but after that, "went into deep slumber like the Alaskan fox who forgot that the winter was over." This "slumber" definitely violated the overriding objectives contemplated by section 1A and 1B of the Civil Procedure Act.

No reasonable explanation has been given for the inordinate inactivity and I am satisfied that what is envisaged under Order 17 Rule 1(2) 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.

(2)…………………………………..

(3)Any party may apply for its dismissal

As provided in sub-rule 1. "

I need   not  belabour  the  matter,   no satisfactory explanation has been given  for  the  over  3 years period in which  no steps  have been  taken  to   have  the  matter heard.  In fact the plaintiff has demonstrated every step of the way, definite lack of interest in this matter.

The  upshot is  that this matter does not  deserve another day  in  the   court or  at the   registry and  I  hold   that  the application is  merited.   I order the   suit dismissed with costs to the   defendant. The plaintiff shall also bear the costs of this application

Delivered and  dated   this 7th day of October 2014 at Nakuru.

H.A. OMONDI

JUDGE