Peter Barasa Rajabu v University of East Africa Baraton [2014] KEHC 3818 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT ELDORET

HCCC NO. 107 OF 2010

PETER BARASA RAJABU  ::::::::::::::::::::::::::::::::::::::::::::::::     PLAINTIFF

=VERSUS=

UNIVERSITY OF EAST AFRICA BARATON  :::::::::::::::::::::::::     DEFENDANT

RULING

The Defendant prays that the Plaintiff's suit be dismissed for want of prosecution.  By a notice of motion dated 6th December, 2013, it  is pleaded that the Plaintiff is disinterested in prosecuting the suit.  It is  averred that the suit  has never been set down for  hearing since the year 2010.  It is also two years since the matter was last in court on 5th December, 2012.  the Defendant submitted that it is prejudiced by the suit.  Lastly, the Defendant  submitted that this is a proper case for dismissal under order 17 rule 2 of the Civil Procedure Rules 2010.

The motion is contested.  There are filed grounds of  opposition dated 18th June, 2014 and a replying affidavit of the Plaintiff sworn on 18th  June, 2014.  In a Synopsis, the Plaintiff states that he changed  advocates who filed a notice of change of advocates dated 25th May, 2013 and served on the Defendant's on 25th November, 2013.  Accordingly, a year has not lapsed as  envisaged by order 17 of the Civil Procedure  Rules 2010.  It is  deposed that the Plaintiff 's counsel is now in the process of complying with Order 11 of the Rules.  As the matter revolves around  the rights of a student at the Defendant university, I was urged not to dismiss the suit.  Furthermore, my attention was  drawn to the overriding objective of the  Court and Article 159 (2) (d)  of  the Constitution.  In  a nutshell, the Plaintiff pleads to remain on the throne of justice.

I have heard the rival submissions.  Facts can be very stubborn.  The  fact is that this suit was filed on 13th August, 2010.  The  High Court is a Court of record.  That  records shows that the last time the parties appeared before  the Judge was on 5th December, 2012 when the Plaintiff's motion dated 7th September, 2011 was dismissed.  To date, the Plaintiff has never moved  the registry for a date.  The  Plaintiff has never complied with order 11 of the Civil Procedure Rules on discovery or settlement of  issues for trial.  The suit is over four years old and  has lain dormant for the last two years.  True,  the suit  is over the rights of the Plaintiff as a student at the Defendant university: but it  then  believed the Plaintiff to be even more diligent in prosecuting the matter.  True,  the Plaintiff appointed new counsel, Wachakama & Co. Advocates way back on 25th March, 2013,  They have  not set down the suit  for hearing or taken concrete  steps in that direction.  Their  notice of change of Advocates was served late on 25th November, 2013 upon the Defendant's Counsel.  Time under order  17 rule 2 does not run from the date of that  service of a notice of change  of advocates.  It runs from the last  step taken.  I am afraid that no step to prosecutethe suit  or even to prepareit for trial has been taken since 5th December, 2012, over two years ago.

Granted those circumstances, the motion for dismissal is well anchored upon Order 17 rule 2 of the Civil Procedure rules 2010.  It is the Plaintiff's duty to  get on with the case.  There  is a pattern of delays that have not  been  well explained or  at all.  When  delay is established,  unless it is  explained,  it is deemed to be inexcusable.  See Ivita  -V- Kyumbu [ 1984] KLR  441.  The Defendant  is prejudiced by the inert grip of the Plaintiff.  The  Defendant is held in abeyance.  The  Defendant has elected to  move for dismissal of the Suit.  Order 17 rules 2 and 3  entitle it to do so.  This Court is satisfied that a period of two years has lapsed without any step being taken to prosecute the suit.  In such circumstances, the  court is entitled to dismiss the suit for want of prosecution.  See Fitspartrick  -v-  Batger &  Company Limited [1967] 2 All ER 657,  Mukisa Buscuit Manufacturing Company  -v- Westend Distributors Limited [1969]  E.A. 696.

I am alive to the Overriding Objective.  Article 159 (2) (d) of the Constitution does not mean that  procedural rules will be completely disregarded.  It only calls upon the Court to  give them undue regard.  In  this  case, there is no plausible or  good reason for the delay.  From  the nature of the case, the  Plaintiff  should have been more diligent.  I am thus minded to dismiss the suit for want of prosecution.  The  suit is dismissed.  Considering  the circumstances of the Plaintiff, and that  the Defendant could itself have fixed a date for  hearing, and in the interest of justice, I decline to order costs.

It is so ordered.

DATED, SIGNED AND DELIVERED AT  ELDORET IN OPEN COURT THIS  19TH JUNE, 2014.

…………………………………………….

G.K. KIMONDO,

JUDGE.

Ruling read in open Court In the presence of:-

Mr. Omusundi                           :        for Plaintiff

Mr. Momanyi                             :        for Defendant

Mr. Weyama,                             :        Court/clerk.

………………………….........

G.K. KIMONDO

JUDGE

19/06/2014