THARA ORCHARDS LIMITED v NATION MEDIA GROUP LIMITED (AFRICA BROADCASTING DIVISION), MICHAEL MUMO, CHARLES NDUNGU GITHUKA & REUBEN MUSYOKA MUTISO [2008] KEHC 1779 (KLR)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS)

Civil Case 309 of 2000

THARA ORCHARDS LIMITED………………………………………PLAINTIFF

VERSUS

NATION MEDIA GROUP LIMITED

(AFRICA BROADCASTING DIVISION)…….1ST DEFENDANT/APPLICANT

MICHAEL MUMO…………………………..….2ND DEFENDANT/APPLICANT

CHARLES NDUNGU GITHUKA……………………………..3RD DEFENDANT

REUBEN MUSYOKA MUTISO……………………………….4TH DEFENDANT

RULING

1. The application before court is the Notice of Motion dated 2/02/2007 by which the applicants/defendants seek an order dismissing the plaintiff’s suit against the 1st and 2nd defendants for want of prosecution.  They also pray for costs of both this application and the suit.  The application is brought under Order 16 Rule 5, Order 50 Rule 1 of the Civil Procedure Rules, Section 3A of the Civil Procedure Act and all other enabling provisions of the law.  The applicant says that since 9/11/2005, the plaintiff has not set down the suit for hearing.

2.  The application is supported by the sworn affidavit of Zehrabanu Janmohammed, advocate dated 2/02/2007.  She says that her firm of advocates, M/s Archer & Wilcock was instructed to conduct this matter on behalf of the 1st and 2nd defendants and that she is the one who personally has the conduct of the suit on behalf of the said two defendants; that the plaintiff filed suit on 24/02/2000 while her firm filed defence of the 1st and 2nd Defendants on 14/04/2000.  Thereafter according to the deponent, the matter was fixed for hearing on the 9th and 10th November 2005, but that the same could not proceed as it was not confirmed at the call over.  The deponent says further that since then, the plaintiff has not made any attempt to fix the matter for hearing and that it would appear that the plaintiff has lost interest in the case.  Accordingly, the applicants pray that it is only fair and just that the plaintiff’s suit against them be dismissed for want of prosecution.

3.  The application was opposed vide the Replying Affidavit sworn by Peter Kaluma advocate on 27/09/2007.  The gist of the said affidavit is that the delay in setting down the suit for hearing has been caused by a number of factors:? the demise of the former advocate in or about the year 2005; the loss and/or misplacement of the court file when the advocates now on record for the plaintiff wanted to file their Notice of Change of Advocates, despite much correspondence exchanged between the said advocates and the Deputy Registrar of the High Court; the court registry’s reluctance to give a hearing date even after the court file reappeared.  That all these factors were beyond the control of the plaintiff/respondent.  Mr. Kaluma says that the application by the 1st and 2nd Defendants is mischievous and that the said applicants seem to have been in conspiracy with the court registry staff.  It is my view that in the absence of evidence to prove such conspiracy, I consider that paragraph 14 of the Replying Affidavit is scandalous and the same is struck out and expunged from the record.

4.  At the hearing of the application, Miss Onyango for the applicants, urged the court to allow the application.  She pointed out that though the plaintiff respondent alleged to have written numerous letters to the Deputy Registrar asking for the file, no such efforts were made between 5/06/2006 and 2/02/2007 when the applicants filed their application; and that it was only after the applicants filed their application and served it that the plaintiff’s advocates now on record filed their Notice of Change of Advocates.

5.  Mr. Kaluma for the plaintiff/respondent urged the court to consider the averments of the Replying Affidavit and to find that the plaintiff/respondent did everything possible to set down the suit for hearing to no avail.  It is to be noted that there is some evidence that between 20/02/2006 and 5/06/2006, there was some correspondence between the plaintiff’s advocates on record with either the Law Society of Kenya or the Deputy Registrar of the High Court, but after that, there was no other letter written by the plaintiff’s advocates to anybody.  Mr. Kaluma also urged the court to find that even the applicants herein are guilty of delay in having the instant application prosecuted.  He submitted that though the application was filed on 2/02/2007, it was not served upon the respondent’s counsel until 14/09/2007.  To this contention, Miss Onyango submitted that there was no delay as alleged and that in any event, it was the plaintiff’s/respondent’s duty to look for the file and fix the matter for hearing.

6.  Should the applicant’s prayer be granted?  Order 16 Rule 5 of the Civil Procedure Rules provides as follows:?

“If within three months after ?

(a)the close of pleadings; or

(b)Deleted

(c)The removal of the suit from the hearing list; or

(d)The adjournment of the suit generally, the plaintiff or the court of its own motion on notice to the parties, does not set down the suit for hearing, the defendant may either set down the suit for hearing or apply for its dismissal.”

7.  The uncontroverted facts of this case are that since the 9th and 10th November, 2005, the plaintiff has not set down the suit for hearing.  It is also not contested that former counsel for the plaintiff, one Leah Mbuthia Mwagiru of the firm of Mbuthia Mwagiru & Co. Advocates, passed on in 2005 as per annexture “PK1” to Mr. Kaluma’s Replying Affidavit.  It is also not disputed that the last letter written on behalf of the plaintiff/respondent seeking to know whether the court file was available, was written on 5/06/2006.  Since then, and up to the time when the applicants filed the instant application on 2/02/2007, the plaintiff/respondent remained asleep.

8.  In light of the above undisputed facts, I have no doubt, in my mind that the plaintiff has lost interest in this suit.  It was the plaintiff’s duty at all times to ensure that it complied with the provisions of the law as set out under Order 16 Rule 5 of the Civil Procedure Rules.  It did not do so, and cannot now turn round and allege laches on the part of the 1st and 2nd Defendants on this application in an effort to weave its way out of its own catch 22 situation.  Accordingly, I do find and hold that the application is meritorious.  I allow the same and order:?

That the plaintiff’s suit against the first and second Defendants be and is hereby dismissed for want of prosecution.

That the plaintiff do pay the first and second Defendants costs of this application and of the suit.

It is so ordered.

Dated and delivered at Nairobi this 23rd day of May 2008.

R.N. SITATI

JUDGE

Delivered in the presence of:?