Duale Maryan Gurre v Aminal Mohamed Mahamood & another [2014] KEHC 7646 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

ENVIRONMENTAL AND LAND DIVISION

ELC CIVIL SUIT NO. 329 OF 2009

DUALE MARYAN GURRE…………………………………  PLAINTIFF

VERSUS

AMINAL MOHAMED MAHAMOOD…………………1ST  DEFENDANT

BOARD OF TRUSTEES NATIONAL ………………..  2^ND DEFENDANT

SECURITY FUND

RULING

The Plaintiff filed the instant suit on 9^th July 2009 seeking a declaratory judgment  against the 1^st and 2^nd Defendants that L.R. NO.Tassia 11-97/1050/3218 also known as Tassia 11-97/0993/Q106 and L.R.NO.211907/3218 being the same parcel belongs to the plaintiff.  The plaintiff also sought a permanent injunction and a mandatory injunction compelling the 1^st Defendant to demolish the permanent structures erected on the parcel of land.

The Plaintiff simultaneously with the plaint filed a chamber summons under a certificate of urgency seeking an interim injunction against the 1^st Defendant.  Directions on the chamber summons were given on 20/7/2009 by Honourable Justice Nambuye and the matter was further mentioned on 23/11/2009 before Hon. Justice Mbogholi Msagha before the application was finally fixed for hearing before Honourable Justice Muchelule when both counsel for the parties (Plaintiff and Defendant) appeared and sought an adjournment for the hearing of the interlocutory application for injunction on the ground that the parties wished to negotiate a settlement of the matter out of court.  The court accordingly marked the matter stood over generally to allow the parties time to settle.

It appears from the record that the plaintiff and the 1^st Defendant did not come back to court with any settlement and that no further action was taken by the plaintiff to prosecute the suit upto the time the 2^nd Defendant filed its Notice of Motion dated 12^th June 2013 on 18^th June 2013 seeking to have the suit dismissed with costs for want of prosecution.  It is this application by the 2^nd Defendant which is the subject of this ruling.  The application is premised on the grounds that the plaintiff has not set the suit down for hearing for a period of over 12 months and that the plaintiff has not taken any step to prosecute the suit since 28/12/2010 when the suit was adjourned on the application of the plaintiff.  The grounds are reiterated in the affidavit of Austin Ouko, legal manager of the 2^nd Defendant sworn on 12^th June 2013 in support of the application.  The 2^nd Defendant avers that the plaintiff has no interest in the suit and thus it is just  and expedient that the suit be dismissed for want of prosecution.

The plaintiff opposes the application and has filed a replying affidavit sworn on 20^th August 2013.  The plaintiff deposes that the firm of Kwengu & company Advocates who she had instructed failed and/or neglected to take any necessary steps to prosecute the suit and urges that the inadvertent mistake of counsel should not be visited upon her.

The court directed the parties to canvass the 2^nd Defendant’s application by way of written submissions and the 2^nd Defendant filed its submissions on 11/10/2013 and the 1^st Defendant  filed submissions on 8/11/2013 in support of the applicant’s application.  The plaintiff did not file any submissions and through counsel stated that the plaintiff would rely on the filed replying affidavit.  The 2^nd Defendant in its submissions reiterated the contents of the supporting affidavit and contended that the delay by the plaintiff to take any step towards the prosecution of the suit since 28/12/2010 when the suit was adjourned generally was inordinate and inexcusable.  The 2^nd Defendant contended the plaintiff had slept on her rights and she had been indolent.  The plaintiff further had not offered any plausible reason for the delay and the 2^nd Defendant argues that the plaintiff cannot rely on what she claims was a mistake of counsel and/or neglect of counsel to relieve herself of her obligations as a litigant.  The 2^nd Defendant submits that the court is enjoined under sections 1A and 1B of the Civil Procedure Act Cap 21 Laws of Kenya to foster the overriding objective of the Civil Procedure Act which is to facilitate the just, expeditious proportionate and affordable resolution of Civil disputes such as the one before the court.  Under section 1B of the Civil Procedure Act the court in furthering the overriding objective as above is mandated to handle all matters presented before it for purposes of attaining the following aims:-

1. the just determination of the proceedings,
2. the efficient disposal of the business of the court
3. the efficient use of the available judicial and administrative resources,
4. the timely disposed of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties, and
5. the use of suitable technology.

The 1^st Defendant by her submissions supports the 2^nd Defendants application and prays for the dismissal of the suit with costs for want of prosecution.  The 1^st Defendant argues the plaintiff has not proffered any reason for the delay and submits in action by the plaintiff’s counsel cannot be a good reason.

I have at the beginning of this ruling set out briefly the history of this suit with the object of contextualising the issues.  It is clear and apparent that the interlocutory application that the plaintiff filed under a certificate of urgency with the plaint on 9/7/2009 had not been prosecuted for at least 4 years since the same was filed as at the time the applicant filed the instant application.  From the record there is also no evidence that any summons to enter appearance were ever lifted for service upon the Defendants such that the Defendants are yet to be served with summons to enter appearance in this suit.

Under order 5 rule 1 (2) of the Civil Procedure Act summons are supposed to be obtained from the court not more than 30 days from the date of filing suit.  It is the duty of the plaintiff or his advocate to ensure the summons are prepared and filed with the plaint for signature by the court.  In the instant case there is no copy of any signed summons and/or any return of service by the plaintiff showing that any summons were ever served on the Defendants.  It is thus not surprising that the Advocates for the 1^st Defendant and 2^nd Defendant upon being served with the chamber summons filed Notices of appointment of Advocate and not memorandums of appearance as would have been the case if summons had been served.  In my view unless a summons has been issued in accordance with order 5 Rule 1 of the Civil Procedure Rules there cannot be a valid notification of the suit upon the Defendant.  Order 5 Rule (1) (6) of the Civil Procedure Rules provides:-

5(1)(6) Every summons except where the court is to effect service, shall be collected for service within thirty days of issue or notification, whichever is later failing which the suit shall abate.

In the event no summons were issued for service on the Defendants as envisaged under order 5 rule 1 of the Civil Procedure Rules as appears to have been the case in the present suit the plaintiff cannot have a sustainable suit against Defendant as indeed the Defendants have not been called upon to answer the suit.  It matters not that the 1^st Defendant may have filed a defence.  The point is that the 2^nd Defendant has not filed its defence and it cannot be faulted since no summons have been served on them.

I have considered the material placed before the court and the reason offered by the plaintiff for the delay in prosecuting the suit and I am not persuaded I should exercise my discretion in favour of the plaintiff.  Any person who initiates a litigation against another has a duty and is under an obligation to ensure that the suit he has brought is expeditiously processed and prosecuted in the court by ensuring the necessary preparation and follow up is done to ensure there are no unnecessary delays.  The overriding objective of rendering justice expeditiously  as envisaged under sections 1A and 1B  Civil Procedure Act is anchored on the parties and their legal advisors playing their supportive roles in the chain of justice delivery and as the saying goes justice cuts both ways in every matter.

An advocate is the agent of the party who instructs him and such instructing client as the principal continues to have the obligation and the duty to ensure that the agent is executing the instructions given.  In the case of litigation, the suit  belongs to the client and the client has an obligation to do follow up with his Advocate to ensure the Advocate is carrying out the instructions as given.  The litigation does not belong to the Advocate but to the client.  If the Advocate commits a negligent act the client has an independent cause of action against the Advocate.

In the present application I would echo the words of P.N. Waki, Judge of Appeal in B1-MACH ENGINEERS LTD- VS- JAMES KAHORO MWANGI (2011) Eklr  where while commenting on the duty of a client vis- a vis counsel he observed as follows:-

• “The applicant had a duty to pursue his advocates to find out the position on the litigation but there is no disclosure that the applicant bothered to follow up the matter with his erst while advocates.  It is not enough simply to accuse the advocate of failure to inform as if there is no duty for the client to pursue his matter.  If the client was simply guilty of inaction, that is not an excusable mistake which the court may consider with some sympathy.  The client has a remedy against such an advocate.’’--

The plaintiff in the instant case is in a similar kind of situation where she merely states the advocate did not take any action to prosecute.  What did she herself do to prod her advocate?.  Nothing as per her replying affidavit.  Inaction on the part of the advocate without any explanation cannot constitute an excusable reason for delay.  The applicant referred the court to the decisions in JOHN GACHUMA MBUGUA & ANOTHER –VS- MARY RUGURU NJONGE RUKWARU –VS- ARITHO IGWETA & ANO.(2006) eKLR when while  the judges refused to exercise their discretion to sustain the suits where the Respondents could not explain their delays.  I approve of their decisions.

In the instant suit it is my finding that the plaintiff and/his previous Advocate were casual in the manner they went about prosecuting the suit considering that no summons have todate been lifted and served on the defendants and further considering the chamber summons initiated under a certificate of urgency in July 2009 is yet to be disposed prosecuted.  What other evidence of lack of concern or interest would be required?  The delay to prosecute the suit from 28/12/2010 to 18/6/2013 when the instant application was filed is unexplained and there is no basis upon which I can exercise my discretion in favour of the plaintiff/Respondent to sustain the suit in the face of the glaring casualness and inaction on the part of the Plaintiff.  The delay was inexcusable.

Accordingly I find the 2^nd Defendant’s application dated 18/6/2013 has merit and grant the same with the result that I order the plaintiff’s suit dismissed with costs to the Defendants for want of prosecution.  The costs of the application are awarded to the Defendants.

Ruling dated and delivered this…27^th day of……February…2014.

J.M. MUTUNGI

JUDGE

In presence of:

N/A………………………………………..PLAINTIFF

Mr. Njoroge………………………………for 1^ST DEFENDANT

Mr. Njoroge for Mbaabu …………….. for  2^ND DEFENDANT