Waihenya Chomba, Daniel Kairu Kiaraho, Kamau Mucuha & Lera Estates Limited v Emco Steel Works Limited & Kenya Commercial Bank Limited [2015] KEHC 7734 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

COMMERCIAL AND ADMIRALTY DIVISION

CIVIL SUIT NO. 1588 OF 2000

WAIHENYA CHOMBA……………………..………………………..…….1ST PLAINTIFF

DANIEL KAIRU KIARAHO…………………………………………….….2ND PLAINTIFF

KAMAU MUCUHA………………………………………………....…..….3RD PLAINTIFF

LERA ESTATES LIMITED……………………………………….......…….4TH PLAINTIFF

- VERSUS –

EMCO STEEL WORKS LIMITED………………………...........…….....1ST DEFENDANT

KENYA COMMERCIAL BANK LIMITED…………….....…………..…..2ND DEFENDANT

RULING

1. The application before me seeks the dismissal of the suit for want of prosecution.  It has been brought pursuant to the provisions of Order 17 Rule 2 (3) and Order 51 Rule 1 of the Civil Procedure Rules.

2. This application was filed on 2nd April 2015.  The applicant,EMCO STEEL WORKS LIMITED, emphasized that the suit was filed about 15 years ago.

3. Secondly, as the Applicant filed its defence on 12th of October 2000, it believes that pleadings closed on or about 27th October 2000.

4. The last time when the case came up before the court, prior to the filing of this application, was said to have been on 19th September 2013.  Consequently, the Applicant pointed out that the plaintiff had gone to slumber for over a year and-a-half, prior to the filing of the application.

5. The length of time spent in the slumber was said to be a clear indication that the plaintiff had lost interest in the suit.

6. In the circumstances, the Applicant was of the view that it was unjust and unfair for it, to have the old case continue to hang over its head.

7. The Applicant’s case was that it had been highly prejudiced by the delay in the prosecution of the case.  The said prejudice was described as being even more serious because the Applicant was a body corporate. Bearing in mind the turn-over of human personnel at the Company, the Applicant was bound to suffer loss of institutional memory, when crucial witnesses left the company.

8. Furthermore, the failure by the plaintiff to comply with the Directions which the court gave on 19th September 2013, (during the pre-trial conference), the Applicant was of the view that justice would be served by the dismissal of the suit.  That view was said to have been further grounded upon the fact that the case was already 15 years old.  Therefore, the Applicant invited the court to bring this litigation to an end, as there cannot be any sufficient reason to warrant the continued existence of the case.

9. The Applicant described the continued subsistence of the case as a violation of the Overriding Objectives of the Civil Procedure Act, which demand a timely disposal of cases.

10. In answer to the application, the plaintiff indicated that the Applicant was wrong to have said that the case was last in court on 19th of September 2013.

11. As far as the plaintiffs were concerned, they had never gone to slumber.  If anything, they had actively taken steps to prosecute the case.

12. Documents were exhibited by the plaintiffs to show that;

i) On 24th June 2014, the case was taken out of the Cause – list, at the instance of the Court;

ii) On 23rd September 2014; on 14th October 2014; and on 24th February 2015, the plaintiff asked the Court, in writing, to fix a date for pre – trial conference.  On each of those 3 dates, the court informed the plaintiff that the Court File was missing.

iii)This application was served upon the plaintiff on 21st April 2015.

iv) Having been made aware that the Court File was then available, the plaintiffs filed their Witness Statements and Bundles of Documents.

13. In its submissions, the Applicant faulted the plaintiffs for failing to take action to prepare the case for trial, for a period of over 13 years.  The said delay was said to have remained un-explained.  Therefore, the Applicant asked the court to dismiss the suit because the plaintiffs had not manifested reasonable diligence in pursuing the cause.

14. The plaintiffs’ first answer to that submission was that the Applicant should not be heard to complain about delay when the Applicant delayed in filing its submissions on this application.

15. According to the plaintiffs, if delay in taking action was sufficient to be the basis for dismissal of the suit, such delay should also be the basis for expunging from the court file, the Applicant’s submissions.

16. To my mind, that reasoning of the plaintiffs was not sustainable, if it is placed within perspective.  I so hold because the Applicant did not complain about delay.  The complaint was that there had been an inordinate delay.  Such inordinate delay was said to have given rise to prejudice, as the Applicant’s employees left employment during the period of 15 years.  In the circumstances, the Applicant felt that the prolonged delay created a situation in which the Applicant would be unable to get justice, due to acts and omissions attributable to the plaintiffs.

17. The plaintiffs have not alluded to any prejudice that could be occasioned to them by the delay of 7 days, in the filing and service of the Applicant’s submissions.

18. In any event, the delay was for a fairly short span of time; 7 days.

19. The period of 15 years is not at all short, by any standards of litigation.

20. The plaintiffs do not appear to have taken any steps in the proceedings between 2003 and 2013.  However, a careful perusal of the record of the proceedings reveals that on 31st March 2003, Osiemo J. dismissed the plaintiff’s application for Leave to amend the Plaint.

21. Being dissatisfied with the said Ruling, the plaintiffs lodged Civil Appeal No. 290 of 2003, at the Court of Appeal.  Whilst the appeal was still pending, the defendants took steps to set down the case for Hearing.

22. On 31st July 2006, the plaintiffs filed an application for stay of proceedings until the Appeal was heard and determined.

23. On 22nd June 2006, Okwengu J. (as her Ladyship then was) granted stay of the proceedings until the Appeal was determined.

24. It is not clear when the Appeal was determined, or what the outcome was.  However, it appears that the plaintiff’s were granted leave to amend the plaint.  I say so because on 31st March 2009, an Amended Plaint was filed.  On the face of the said Amended Plaint, it is indicated that the amendment was effected pursuant to an order made on 11th March 2009.  I therefore presume that on 11th March 2009, the Court of Appeal allowed the plaintiffs to amend the plaint.

25. As the plaintiffs filed a Reply to the 1st Defendant’s Amended Defence on 23rd April 2009, I find that the Applicant cannot have been correct to assert, as it did, that the pleadings closed on 27th October 2000.

26. Secondly, in the light of the order for stay of proceedings pending Appeal, the plaintiffs could not have taken steps to prosecute the suit until the appeal was determined.

27. Immediately after the Appeal was determined, the plaintiffs amended the plaint, and the defendants responded to the said Amended Plaint.

28. On 26th October 2009, the plaintiffs filed a Statement of Issues.

29. On 12th October 2010, the plaintiffs filed a Notice To Admit the Authenticity of the documents specified on the said Notice.  The case was then fixed for Hearing on 26th October 2010.

30. However, on 26th October 2010, the plaintiffs and the Applicant informed the court that they were exploring the possibility of an out–of–court settlement.  They, therefore asked the court to adjourn the trial indefinitely.

31. In line with the consent of the parties, the court adjourned the case.

32. Thereafter, the court records show that on 17th November 2010, the plaintiffs’ advocates attended at the Court Registry, together with the advocates for the 1st Defendant, when they fixed the case for trial on 1st March 2011.

33. However, the record does not indicate what happened on 1st March 2011.

34. The next entry on the record shows that the case was fixed for Hearing on 28th March 2012.

35. On that date, the defendants both told the court that they were not ready to proceed with the trial, as they had each not complied with the pre-trial procedures.  Kimondo J. granted the adjournment sought by the defendants, and ordered the 1st defendant to pay costs to the plaintiffs.

36. In a nutshell, the history of this case does not portray the plaintiffs as persons who were in slumber-land between 2000 and 2015.

37. Secondly, the plaintiffs have demonstrated that they took steps to try and move the case forward.  Their efforts were hampered by the non-availability of the Court File.

38. The said non-availability of the Court File is a most regrettable fact, but it cannot be blamed upon the plaintiffs or any of the other parties.

39. I dare say that the non-availability of the Court File also appears to have affected the Applicant, as the Company’s application dated 5th February 2015 could not be filed until 2nd April 2015.

40. Thus the non-availability of the Court File cannot have been to the advantage of any of the parties.

41. In relation to the overall delay in the hearing of the case, I hold the view that neither of the parties can benefit from it more than the other.  It cannot be said that because some witnesses work for corporate bodies, their ability to remember facts was any less than the ability of other persons.

42. In the final analysis, I find as follows;

a)Although the period of 15 years is long, it cannot be said that the delay was intentional or unexplained on the part of the plaintiffs.

b) The plaintiffs did not go to slumber, as alleged by the Applicant.  If anything, the plaintiffs regularly took steps to pursue the claim, including bringing an application for leave to amend the plaint; and an application for stay of proceedings pending appeal.

c) At some point in time, the parties consented to the adjournment of the trial, as they were trying to settle the case amicably.

d) The applicant’s witnesses cannot be said to be intrinsically worse off than those of the plaintiffs, simply because they were working for a body corporate.

e) Even though witnesses may have moved on from the employment of a party, that alone would not be reason to hold that the witness would be unable to testify or that if he testified, he would not be able to recollect the facts relevant to the matters in issue.

f) The Applicant alluded to its defence being hinged on

“recollection of information independent of the records produced”.

That implies that there were documents to be relied upon, amongst other evidence.

Of course, documents speak for themselves.

Whilst, in relation to other evidence, which is based on the ability of witnesses to recollect, it has not been demonstrated that, either the Applicant would be disadvantaged, or that the plaintiffs would gain any undue advantage due to the delay.

g) The burden of proof rests on the party who makes an allegation.  Therefore, if the delay would reduce the ability of witnesses to recollect what had transpired at the material time, the impact would probably have an adverse impact on the plaintiffs.

h) Under Order 17 Rule 2, the Court is enjoined to give consideration to the failure by the plaintiff to take steps for a year preceding the institution of the application to dismiss the suit for want of prosecution.

43. In the result, I find no merit in the application dated 5th February 2015.  It is therefore dismissed.  The Applicant will pay costs to the plaintiffs.

DATED, SIGNED and DELIVERED at NAIROBI this30th dayof September2015.

FRED A. OCHIENG

JUDGE

Ruling read in open court in the presence of

Morara for the 1st Plaintiff

Morara for the 2nd Plaintiff

Morara for the 3rd Plaintiff

Morara for the 4th Plaintiff

Asindi for Ochieng for the 1st Defendant

Wakwaya for the 2nd Defendant

Collins Odhiambo – Court clerk.