ROBERT KAMAU IKEGU v SHADRACK THUKU NDUNGU & 2 others [2009] KEHC 447 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI (NAIROBI LAW COURTS)

Civil Suit 2163 of 2007

ROBERT KAMAU IKEGU…………………………………………..PLAINTIFF

VERSUS

SHADRACK THUKU NDUNGU……………………………..1ST DEFENDANT

MOSES NDUNGU THUKU………………………………….2ND DEFENDANT

HON. ATTORNEY GENERA…………………………………3RD DEFENDANT

R U L I N G

1. The application before court is the Notice of Motion dated 16/06/2008 by which the Applicant, the 1st Defendant herein, wants the Plaintiff’s suit dismissed on grounds of want of prosecution.  The grounds in support are that —

(a)The cause of action arose on or around 6th October 1959.

(b)It is more than five (5) months since the close of pleadings and the Plaintiff has not set down the suit for hearing.

(c)The delay is inordinate, inexcusable and against the policy of expeditious disposal of suits.

2.    The application is also supported by the affidavit sworn by Charles Mbugua Njuguna dated 16/06/2008.  The deponent who is an advocate of this honourable court says that the Plaint herein was filed on 26/06/2007 and that pleadings closed on 11/12/2007.  That since close of pleadings on 27/12/2007, the Plaintiff has made no efforts whatsoever to set down the suit for hearing.  The deponent avers that the Plaintiff’s delay in setting down the suit for hearing is against the policy of expeditious disposal of suits.

3.    The application is opposed.  The Replying Affidavit, dated 18/09/2008 is sworn by Robert Kamau Ikegu, the Plaintiff herein.  His main argument against the application is that the 2nd Defendant in this case has not been traced so as to be served with the Summons to Enter Appearance.  The Plaintiff prays that he be allowed to serve the 2nd Defendant through substituted service.

4.    At the hearing of the application before Kubo J (as he then was) on 22/09/2008, counsel for the Defendant/Applicant urged the court to dismiss the suit for want of prosecution.  Mr. Etemesi for the Plaintiff/Respondent relied on the Replying Affidavit and stated that since the Notice of Motion does not plead limitation of the Plaintiff’s suit under sections 4 and 7 of the Limitation of Actions Act, Cap 22 Laws of Kenya, the suit should not be dismissed on that ground.  Mr. Etemesi also submitted that the Plaintiff has been diligent in having the suit prosecuted and that there was no inordinate delay on the part of the Plaintiff.  Mr. Etemesi also submitted that there is a pending application seeking leave of the honourable court to serve the 2nd Defendant by substituted service.

5.    The court has now considered the application, the supporting affidavit and annextures thereto.  The court has also considered the Replying Affidavit and the submissions made by both counsel.  The question that arises for determination is whether this is a proper case for dismissal under the provisions of Order XVI Rule 5(a) of the Civil Procedure Rules and Section 3A of the Civil Procedure Act.

6.    After considering all the above matters, the court has reached the conclusion that the Plaintiff/Respondent has not been diligent in the way he had handled this case with regard to the 1st Defendant.  The 1st Defendant was served with Summons to Enter Appearance.  The 1st Defendant entered appearance and filed defence.  It is not the duty of the 1st Defendant to assist the Plaintiff in effecting service of summons upon the 2nd Defendant.  The court notes that though there is indeed an application on record dated 18/09/2008, there is no indication by the Plaintiff/Respondent that the said application has a hearing date.  The application was not even filed under Certificate of Urgency, an indication that the issue of service of summons upon the 2nd Defendant is not a matter of urgency to the Plaintiff.

7.    In the circumstances, the 1st Defendant’s/Applicant’s application dated 16/06/2008 has merit.  Accordingly, the Plaintiff’s suit against the 1st Defendant be and is hereby dismissed for want of prosecution with costs to the said 1st Defendant.

Orders accordingly.

Dated and delivered at Nairobi this  3rd day of December, 2009.

R.N. SITATI

JUDGE

In the presence of:-

No appearance for the 1st Defendant/Applicant

Mr. Ogwe for Mr. Ng’ang’a (present) For the Plaintiffs/Respondents

Weche– court clerk