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Kairo v Betio Town Council [2025] KIHC 43; Civil Case 23 of 2014 (28 July 2025)

IN THE HIGH COURT OF KIRIBATI

High Court Civil Case 23 of 2014

Between: Tewanimone Kairo
Plaintiff

AND: Betio Town Council Defendant

Date of hearing: 26 June 2025
Date of judgment: 28 July 2025

Appearances: Mr Banuera Berina for the Plaintiff

Mr Tairake Ioane for the Defendant

R U L I N G

1. The case was filed on March 10, 2014. The defendant submitted their defense on June 5, 2014. The court issued the Order on Directions on September 4, 2014. The plaintiff filed her/his affidavit in support of the claim on April 30, 2015. On July 29, 2015, the parties signed the agreed issues.
   
2. On March 13, 2018, an in-chamber hearing was postponed because the defendant's counsel was away on Kiritimati Island. As a result, the case was rescheduled for April 3, 2018. On that date, neither party appeared, so the case was adjourned sine die unless either party requests a new hearing. No such requests were received.
   
3. The court reconvened the case in December 2022. It was adjourned again because the defendant's lawyer was no longer representing them. A new lawyer took over the case in June 2023. Since then, the case hearing has been postponed multiple times due to requests from either the plaintiff or the defendant; however, it was most often the defendant who was not ready until December 6, 2023.
   
4. Today, the court listed the case for striking out because there has not been any action or movement for more than 12 months. This is the registrar’s initiative pursuant to Order 62 Rule 1 of the High Court Civil Procedure Rules.
   
5. The defendant supports the motion to strike out because the delay was about 10 years, and they would be prejudiced if the case proceeds. They would be unable to defend themselves properly due to the delay and would have to rely on secondary evidence.
   
6. South Pacific Marketing (NZ) Ltd v Maile [1987] SBHC 12; SILR 81 (9 November 1987) is referred to by the defendant in support of their argument. In that case, the court considered that the delay inherently entails the risk of prejudice, as the witness may pass away or become unavailable, and memories may fade, thus complicating the pursuit of a just decision.
   
7. Counsel for the plaintiff states that they are eager to move forward with their case and acknowledge that they may have delayed it for some time. Since the last listing on December 6, 2023, they have inquired with the registrar about scheduling the case. Counsel also mentions that the case was adjourned repeatedly to give the defendant time to file their affidavit, as per one of the court's directions.
   
8. I have considered both arguments and agree not to dismiss the case because the plaintiff was correct that most of the adjournments were caused by the defendant, and they still have not complied with the Court’s direction issued on September 4, 2014, for evidence to be filed by affidavit. The plaintiff filed their affidavit on April 30, 2015.
   
9. The principle mentioned in paragraph 6 above is good law. However, its application here is weak because the defendant still has not filed their evidence by affidavit since the Order on Direction was issued in September 2014. It raises questions about the availability of their evidence in support of their defence from the very start of the dispute. It remains to be seen when the case will proceed to a hearing before the court.
   

Outcome

10. The plaintiff’s case must proceed to the hearing. The defendant is to file and serve their affidavit within one month from the date of this ruling. Parties are to fix the hearing date through the PTC as soon as possible. The plaintiff must request a PTC date.
    

Order Accordingly.

THE HON TETIRO SEMILOTA MAATE MOANIBA

Chief Justice