Richard Kipkosgei Koech v Janet Mbogua, Citizen Television & Royal Media Services Ltd [2015] KEHC 4010 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KERICHO

CIVIL SUIT NO.12 OF 2012

RICHARD KIPKOSGEI KOECH...............PLAINTIFF/RESPONDENT

VERSUS

JANET MBOGUA..............................1ST DEFENDANT/APPLICANT

CITIZEN TELEVISION......................2ND DEFENDANT/APPLICANT

ROYAL MEDIA SERVICES LTD.....3RD DEFENDANT/APPLICANT

R U L I N G

1. This Ruling is in respect of the Notice of Motion dated 23rd January, 2015 where the Defendants/Applicants are seeking an order dismissing the Plaintiff's suit and his application dated 23rd February, 2012.  They also pray for costs of the application.  The Notice of Motion is brought under Section 1A & Bof the Civil Procedure Act, Order 17, Rule 2andOrder 51, Rule 1of theCivil Procedure Rules.

2. The main ground is that the Plaintiff has failed to take steps to prosecute the suit since 18th April, 2013 when the matter was to come to court.  They also complain of inordinate delay since the matter was last in court.

3. The application is supported by the affidavit of Gacheru Nga'nga an advocate in the firm of M/s Kamau Kuria & Co. Advocates for the Defendants.  Mr.Gacheru basically reiterates the grounds, outlined in the application.

4. The Plaintiff/Applicant filed a Replying Affidavit on 14th May, 2015, and Mr. Orina indicated to the Court that the said Replying Affidavit had been forwarded by registered post to the Defendants/Applicants. Mr. Karanja for the Defendants/Applicants denied service of the said Replying Affidavit on them.

5. The Court granted both Counsels time to go outside and agree on how to proceed.  After quite sometime the Counsels returned with Mr. Karanja insisting on proceeding with the application.

6. I therefore take it that he had had time to read the Replying Affidavit and did not have any issue with it to make him request for time to file a Supplementary Affidavit.  Based on that and the fact that the Replying Affidavit is on record, this court cannot overlook it.

7. In the Replying Affidavit at paragraph 3-4 the Plaintiff/Respondent deposed that a Ruling to the application dated 23rd February, 2012 was delivered on 15th May, 2013.  Secondly, his Counsel forwarded a draft statement of agreed issues to the Defendants/Applicants to which no response has been made nor a separate statement of issues filed.

8. The Plaintiff/Respondent blames the Defendants/Applicants for the delay caused in this matter.

9. Both Counsels in their submissions reiterated what is in the respective affidavits of the parties.

10. I have considered the application, grounds, affidavits, annextures and the submissions by Counsels and the question I find falling for determination by this court is whether this case is ripe for hearing.

11. From the record herein the Defendants joint statement of defence was filed on 7th March, 2012.  No reply to the defence was filed.  It follows that pleadings closed fourteen (14) days after 7th March, 2012 which comes to 21st March, 2012.

12. The Rules provide that after closure of pleadings the provisions of Order 11 of the Civil Procedure Rules come into play.  Order 11, Rule 2, of the Civil Procedure Rulesprovides;

“After the close of the pleadings parties shall within ten days complete, file and servethe pre-trial questionnaire as provided in Appendix B.”

13. Compliance with Order 11 of the Civil Procedure Rules is by both parties and their advocates (if represented) and not just the Plaintiff alone.

14. A perusal of this record confirms to me that Order 11 of the  Civil Procedure Rules has not been complied with.  The Defendants/Applicants were sent a draft statement of agreed issues but the same has not elicited any response from them. Directions have not been taken to confirm  compliance with Order 11 of the Civil   Procedure Rules for example;

(i)  How many witnesses is each party calling?

(ii) Have the witnesses filed any witnesses statements?

(iii)  What are the agreed issues?

15. The above clearly shows that though this is an old matter of 2012 there is still quite a bit to be done before the parties can think of fixing the case for hearing.

16. I therefore find the application to be pre-mature in the circumstances and I dismiss it with costs.

I direct the parties to comply with Order 11 of the Civil Procedure Rules within thirty (30) days from the date of this Ruling.

Agreed issues to be filed within fourteen (14) days of compliance with Order 11 of the Civil Procedure Rules.

The Suit to be mentioned on 17th August, 2015 before the Deputy Registrar to confirm compliance.  Once compliance is confirmed the parties should move to take a date for hearing in the registry with immediate effect.

Dated, signed and delivered in open court this 3rd day of July, 2015.

H.I.ONG'UDI

JUDGE

In the presence of;

Mr. Karanja for Defendants/Applicants

N/A for Plaintiff/Respondents

Robert- court assistant