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Court of AppealDismissedCivil Appeal No. 250 of 2003· [2004] KECA 121 (KLR)

SALKAS CONTRACTORS LIMITED vs KENYA PETROLEUM REFINERIES LIMITED [2004] KECA 121 (KLR)

Court of Appeal of Kenya
23 July 2004
ROR.S.C OmoloEOE.O. O'KubasuJOJ.W. Onyango Otieno
2,580 words in judgment
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The bottom line

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If you sue and then sit on your case, Kenya's Court of Appeal says you can lose it before any judge hears it.

What this practically means

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Executive summary

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This appeal arose from a ruling of Hayanga, J. of the High Court at Mombasa dated 14 February 2002, allowing the respondent's application under Order XVI rule 5 of the Civil Procedure Rules and section 3A of the Civil Procedure Act to dismiss the appellant's suit for want of prosecution. The appellant had sued for Ksh.774,816 in special damages for breach of contract; pleadings closed in December 1999 but the appellant took no steps to set the suit down, even after the file was transferred from Milimani to Mombasa in mid-2000. Before the Court of Appeal at Mombasa (Omolo, O'Kubasu and Onyango Otieno, JJ.A), the appellant advanced five grounds, including claims that the judge relied on extraneous matters (the compensation of the appellant's employees), relied on unproven factual contentions, and exercised his discretion capriciously. The court applied the settled principle from Mbogo v Shah that an appellate court will not disturb a discretionary decision unless it was wrong in principle or perverse, and adopted the Allen v Sir Alfred McAlpine test as consistently applied in Kenya: the defendant must show inordinate, inexcusable delay and serious prejudice, with the further question whether justice can still be done. The court held the delay after July 2000 was inordinate and inexcusable, that the insurer-document excuse was untenable, and that the compensation issue was properly before the judge as going to prejudice. The appeal was dismissed with costs to the respondent, affirming the dismissal of the suit.

Key legal issues

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01

Test for appellate interference with discretion

Holding

The Court of Appeal will not interfere with the High Court's exercise of discretion unless the judge misdirected himself, was wrong in principle, or acted perversely and was clearly wrong.

Reasoning

Relying on Mbogo v Shah and Jackson Gatere v Mount Kenya Bottlers, the court applied the settled principle that appellate interference with discretionary decisions is confined to cases of misdirection, error in principle, or perversity resulting in misjustice. The appellant had to demonstrate one of these defects before the merits of the dismissal order could be reopened.

p. 2
02

Elements of dismissal for want of prosecution

Holding

The principles in Allen v Sir Alfred McAlpine apply: the defendant must establish inordinate delay, that the delay is inexcusable, and serious prejudice; these principles have been consistently followed in Kenya.

Reasoning

The court adopted Salmon LJ's three-part test as consistently applied in Kenyan courts, including Inter v Kyumba. Where the court is satisfied the delay is excusable and justice can still be done, the suit will not be dismissed; if the delay is inexcusable, the court may dismiss in the exercise of its discretion. The test requires a fact-sensitive assessment rather than a fixed tariff.

p. 4
03

Whether the judge considered extraneous matters

Holding

The fact that the appellant's employees had been compensated by the respondent was raised in the affidavits and canvassed at the hearing, bore on prejudice, and was not extraneous.

Reasoning

The court found that the payment of the accident victims was pleaded by the respondent in its affidavit, answered by the appellant, and submitted on by counsel without challenge. It was therefore properly before the judge and directly relevant to whether the delay had caused prejudice, so no error of principle arose from its consideration.

p. 4
04

Adequacy of the appellant's excuse for delay

Holding

The excuse that the plaintiff was compiling documents with its insurers was not an excusable reason for failing to set the suit down, as such documents should have been gathered before filing suit.

Reasoning

The court held that tracing documents in support of a claim is a pre-filing task and does not justify inaction for roughly ten months after learning the file had been received at Mombasa. No correspondence showed any attempt to fix the suit for hearing, and the appellant never claimed it had made such an attempt, so the judge was plainly right to reject the excuse.

p. 4

Legal principles established

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  • An appellate court will not interfere with the exercise of discretion by a superior court unless the discretion was exercised wrongly in principle or the court acted perversely on the facts and was clearly wrong.
  • To succeed in an application to dismiss a suit for want of prosecution, a defendant must show inordinate delay, that the delay is inexcusable, and that the defendant is likely to be seriously prejudiced by the delay.
  • If the delay is prolonged and inexcusable, the court must still ask whether justice can be done despite the delay; if justice can still be done, the application for dismissal will be refused.

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Costs of the appeal awarded to the respondent

Authorities

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Legislation

  • Civil Procedure RulesOrder XVI rule 5
  • Civil Procedure Actsection 3A

Cases cited (4)

  • Jackson Gatere vs. Mount Kenya Bottles Limited – Civil Appeal No. 107 of 1995
    unreported
  • Mbogo and Another vs. Shah
    [1968] EA 93
  • Allen vs. Sir Alfred McAlpine & Sons Limited
    [1968] 1 ALL ER 543
  • Inter vs. Kyumba
    (1984) K.L.R 441
On appeal from
High Court of Kenya at Mombasa
H.C.C.C No. 346 of 2000
Jurisdiction invoked
Appellate jurisdiction of the Court of Appeal over the ruling and order of the High Court at Mombasa

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "SALKAS CONTRACTORS LIMITED vs KENYA PETROLEUM REFINERIES LIMITED [2004] KECA 121 (KLR)", Case Analysis (2004). Civil Appeal No. 250 of 2003. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2004/121/eng@2004-07-23

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.