LAWRENCE M. MBABU t/a L.M. MBABU & COMPANY ADVOCATES …PLAINTIFF/RESPONDENT
VERSUS
UNIVERSITY OF NAIROBI …………………........................................................DEFENDANT/APPLICANT
RULING
Before me is the Defendant’s/Applicant’s Notice of Motion dated the 10th June 2004 seeking orders that the suit herein be dismissed with costs for want of prosecution on the grounds set out in the Motion.
At the hearing thereof, and in amplification of the grounds aforesaid, Mr. Ng’aru for the Defendant/applicant contended that notwithstanding the plaintiff’s/Respondent’s failure to take any or any material steps to prosecute the suit, including discovery and inspection and the framing of issues, the proper course of action to have been taken by the Respondents would have been to stay the suit pending taxation of the fees claimed in paragraph 4 of the plaint dated the 11th February 2002 as the suit cannot in any event proceed to trial prior thereto.
Mr. Gikunda, for the Respondent, relying on the replying Affidavit of the Plaintiff/Respondent made on the 16th September 2004 and the Grounds of Objection of even date therewith and while conceding that the Respondent has not taken any steps to prosecute the suit, argued that the delay in doing so has been occasioned entirely by the applicant’s advocates’ failure to revert back to the respondent’s Advocates on the letter of the 11th September 2003 in which the Respondent invited the applicant to explore and consider the possibility of settling the matter out of court.
With profound respect to Mr. Gikunda, his argument cannot hold. The onus of prosecuting the suit lies entirely with the Respondent. Having not heard further from the Advocates for the Applicant on their letter of the 22nd September 2003, it is not unreasonable to expect that the Advocates for the Respondent would have dispatched reminders thereon and, if the tomb-like silence persisted, that such Advocates would have taken appropriate steps to prepare the suit for trial and, thereafter, fixed it for hearing – instead, the Respondent elected to take no action whatsoever without any reasonable cause or explanation and he should not now seek to attribute his inactivity to the Applicant.
Accordingly, and the Respondent not having demonstrated any intention of prosecuting his suit nor offered any plausible explanation for the delay, the Notice of Motion dated the 10th June 2004 is hereby granted in terms of prayers 1 and 2 thereof and orders accordingly.
Dated and delivered at Nairobi this nineteenth day November 2004.
P. Kihara Kariuki
Ag. Judge