Eliab Muturi Mwangi & 2 others v Lsg Lufthansa Service Europa/afrika Gmbн & 1 other

4. Through the supporting affidavit of Jan-Peter Ross, the defendants averred that the plaintiff’s inaction demonstrates disinterest in pursuing the matter. They argued that it is unjust to keep the suit pending indefinitely and urged the court, in line with the overriding objective of the Civil Procedure Act, to dismiss the case for want of prosecution with costs to the defendants. 5. The Application is vigorously opposed by the Plaintiff vide a Replying Affidavit dated 26th March 2025, and a Supplementary Affidavit dated 28th April 2025. According to the Plaintiff, he has always been keen to prosecute the matter and that the record of proceedings shows active steps from the time the suit was filed on 23/4/2014 until 7/12/2018, when the parties entered into and adopted a consent dated 13/11/2018 staying the proceedings. He agreed with parts of the defendants’ affidavit on the sequence of events concerning interrogatories and the related appeals, but clarified that the stay orders remained in force until the Court of Appeal rendered its decisions on 13/5/2022 and 19/5/2022, which had restricted him from progressing the matter. 6. The Plaintiff disputed the defendants’ claim that the suit was last in court on 4/8/2021, asserting instead that it was last properly in court on 7/12/2018 when the consent to stay proceedings was adopted. He explained that the 4/8/2021 date was auto-assigned during a file audit by the Deputy Registrar without notice to the parties. He further deponed that after the Court of Appeal concluded both appeals in May 2022, his advocates were unable to trace the file on the e-filing system, likely due to the earlier consent stay. 7. The plaintiff contended that both parties had contributed to the delay and cited section 1A(3) of the Civil Procedure Act, which requires all parties to assist the court in achieving the overriding objective. He also noted that the defendants delayed fixing their own application for mention, doing so only after three months. 8. He confirmed that pre-trial procedures had not yet been undertaken but expressed willingness and readiness to conclude them within two months to make the suit trial-ready in 2025. He attached correspondence showing his advocates’ efforts to have the case re-listed for pre-trial directions. 9. Relying on Article 159 of the Constitution, he urged the court to allow him to prosecute the matter to conclusion, arguing that the case raises an issue of general public importance concerning the rights of advocates over their work product. He maintained that dismissing the suit would cause him undue hardship and prejudice, and prayed that the defendants’ application be dismissed and he be granted an opportunity to prosecute his case expeditiously. 10. The defendants filed a supplementary affidavit was sworn on 28/4/2025 by Filiz Atav Koemuer, the LSG Group Director of Corporate Legal & Contracts, on behalf of the defendants LSG Lufthansa Services Europa Africa GmbH and LSG Sky Chefs Kenya Limited, in response to the plaintiff’s replying affidavit sworn on 26/3/2025. 11. She reiterated the contents of the supporting affidavit sworn earlier by Jan-Peter Ross and maintained that the plaintiff’s replying affidavit failed to address the central issue; his failure to prosecute the matter. She stated that once the Court of Appeal determined both Civil Appeal No. 274 of 2016 (the defendants’ appeal) and Civil Appeal No. 202 of 2016 (the plaintiff’s appeal), it became the plaintiff’s responsibility to move the suit forward, which he failed to do. 12. She dismissed the plaintiff’s explanations regarding delays in service of the defendants’ application as irrelevant, noting that such administrative delays did not justify the prolonged inactivity. She further pointed out that the plaintiff took approximately six months after being served with the application to file his response, demonstrating further lack of diligence. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16524/eng@2025-10-21 2

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13. According to the defendants, the plaintiff’s continued inaction has prejudiced the defendants, warranting dismissal of the suit for want of prosecution. She added that the plaintiff had not demonstrated any exceptional circumstances to justify his delay. 14. Without prejudice, the defendant suggested that if the court were inclined to grant the plaintiff another opportunity, it should be on strict terms that the suit be prosecuted and concluded within a defined timeframe. 15. The matter proceeded by way of written submissions. The plaintiff and defendants filed written submissions dated 9/6/2025 and 22/5/2025 respectively Analysis and determination. 16. Having considered the pleadings, the parties’ respective submissions, and the law, I find that the sole issue for determination is whether this suit ought to be dismissed for want of prosecution. 17. The power to dismiss a suit for want of prosecution is anchored in Order 17 Rule 2 and is an exercise of the Court's judicial discretion. This discretion is not unfettered and must be exercised judiciously, having regard to the principles of justice and equity. 18. Order 17 Rule 2 of the Civil Procedure Rules states: 19. “ (1) In any suit in which no application has been made or step taken by either party for one year, the court may give notice in writing to the parties to show cause why the suit should not be dismissed, and if cause is not shown to its satisfaction, may dismiss the suit. (2) If cause is shown to the satisfaction of the court it may make such orders as it thinks fit to obtain expeditious hearing of the suit. (3) Any party to the suit may apply for its dismissal as provided in sub-rule 1.” The applicable test remains the time-honoured one established in Ivita v Kyumba [1984] KLR 441 and reiterated in the Nilesh Premchand Mulji Shah & another t/a Ketan Emporium v M.D. Popat and others & another [2016] KEHC 6855 (KLR) case that: a. Whether the delay is prolonged and inordinate. b. Whether the delay is inexcusable. c. Whether justice can still be done despite the delay, which necessitates an examination of the prejudice caused to the Defendant. 20. The overriding objective (Section 1A of the Civil Procedure Act) and Article 159(2)(d) of the Constitution command this Court to facilitate the just, expeditious, and affordable resolution of disputes and to administer justice without undue regard to procedural technicalities. 21. From the record, I note that this suit was instituted by the plaintiff vide a plaint dated 23/4/2014 and the defendants filed a joint defence dated 17/7/2014. 22. Thereafter the plaintiff served the defendants with interrogatories, prompting an application to compel them to respond after they objected to some questions. On 29/1/2016, the court ordered the defendants to answer the interrogatories. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16524/eng@2025-10-21 3

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23. Dissatisfied, the defendants appealed in Civil Appeal No. 274 of 2016 and obtained a stay of execution of that order on 8/7/2016. The plaintiff in turn appealed against the stay order in Civil Appeal No. 202 of 2016. Both appeals were later determined by the Court of Appeal; the plaintiff’s appeal was dismissed on 13/5/2022, while the defendants’ appeal was allowed on 19/5/2022, relieving them of the obligation to answer the interrogatories. 24. The defendants assert that the plaintiff has not taken any steps since those decisions to prosecute his claim. 25. In this case, it is evident that from the time that the Court of Appeal rendered its decisions on 13/5/2022 and 19/5/2022, there has been no action in prosecuting this suit by the plaintiff. This prompted the defendants to file the present application almost two years later, seeking dismissal for want of prosecution. 26. This Court agrees with the Plaintiff that the period between November 2018 and May 2022 is excusable. The suit was stayed by consent pending decisions in superior courts, and no fault can be attributed to the Plaintiff for adhering to a court-sanctioned order. 27. The relevant period of potential delay is therefore post-May 2022, following the conclusion of the Appeals and the judicial migration to e-Filing. While the Plaintiff asserts engagement with the Registry to map the file, this Court notes that a delay of nearly two years (May 2022 to July 2024), even with administrative challenges, does constitute a significant lapse of time. This failure to promptly secure mapping or to move the Court formally earlier than the Defendant's Application constitutes some degree of inordinate delay. 28. However, in determining if the delay is inexcusable, the Court must weigh the administrative explanation against the constitutional imperative of substantive justice. The Plaintiff has given a credible, albeit lengthy, account of engagement regarding the e-Filing system, distinguishing their conduct from flagrant and culpable inactivity. 29. On the crucial issue of prejudice, the Court is guided by the Naftali Onyango principle, which places the burden on the Defendant to show they are likely to be seriously prejudiced. In Naftali Onyango v National Bank of Kenya [2005] e KLR, the court reiterated the burden of proof a defendant seeking for dismissal of suit for want of prosecution must meet. Citing Salmon L.J. in Allan V Sir Alfred MC Alphine and sons Ltd [1968] 1 ALL ER 543, F. Azangalala J (as he then was) stated as follows: “ The defendant must show: a. That there had been inordinate delay. What is or is not inordinate delay must depend on the facts of each particular case. These vary infinitely from case to case but it should not be too difficult to recognize inordinate delay when it occurs. b. That this inordinate delay is inexcusable. As a rule, until a credible excuse is made out the natural inference would be that it is inexcusable. c. That the defendants are likely to be seriously prejudices by the delay. This may be prejudice at the trial of issues between themselves and the plaintiff or between themselves and the plaintiff or between each of other or between themselves and third parties. In addition to any inference that may properly be drawn from the delay itself, prejudice can sometimes be directly proved. As a rule, the longer the delay the greater the likelihood of prejudice at trial…” https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16524/eng@2025-10-21 4

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30. In the present case, the Defendant’s submission rests on generic prejudice (legal costs, general assumption of fading memory). The Plaintiff successfully rebuts this by arguing that legal costs are an ordinary incidence of litigation and that the Defendant has failed to demonstrate specific, quantifiable hardship that would impede a fair trial. 31. The power to dismiss is indeed a drastic measure. When balanced against the overriding objective, the Plaintiff's current demonstration of willingness and readiness to progress the suit—coupled with the fact that the initial significant delay was caused by a legitimate court process (the Appeals)—tilts the scales in favour of preserving the suit for hearing on its merits. 32. To dismiss the suit at this juncture, where the Plaintiff has demonstrated immediate readiness to comply with court directions and has shown earlier attempts to revive the file after the Appeals, would be to elevate a procedural technicality (the one-year rule) over the constitutional requirement for substantive justice. This would constitute a "draconian act." 33. For the reasons set out above, this Court is satisfied that while there was a period of less-than-diligent prosecution post-May 2022, the Plaintiff's conduct does not meet the high threshold required for the summary dismissal of the suit. The overriding objective demands that the Plaintiff be given a final opportunity to prosecute the suit. 34. Accordingly, the Defendants' Application dated 26th July 2024 is hereby dismissed. To ensure expeditious disposal of the suit, I hereby issue the following orders: i. The Plaintiff shall, within fourteen (14) days from today, file and serve a suitable Notice to take a further step in the suit, failing which the Defendant shall be at liberty to renew the application for dismissal. ii. The matter shall be listed for a Mention before this Court within thirty (30) days from today to confirm compliance with these orders and to fix a hearing date. 35. The costs of this Application shall be costs in the cause to reflect that while the Plaintiff succeeded in retaining the suit, their conduct necessitated the Application. 36. It is so ordered. SIGNED, DATED, and DELIVERED IN VIRTUAL COURT THIS 21ST OCTOBER 2025 ADO MOSES JUDGE In the presence of: C/A – Moses https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16524/eng@2025-10-21 5

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Gathimba h/b for Kuyo……….. for Def/Respondent Kirima...………….…..... for Plaintiff/Applicant https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16524/eng@2025-10-21 6

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