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Court of AppealDismissedNotice of motion dated 25th May 2006· [2008] KECA 22 (KLR)

JULIUS MUCHIRA NGUU V ELIZABETH MUTHONI & 2 OTHERS [2008] KECA 22 (KLR)

High Court of Kenya
22 October 2008
MKMARY KASANGO
864 words in judgment
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The bottom line

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Kenya's High Court refused to revive a case dismissed for inaction, warning that unexplained delays and missing paperwork can permanently kill a claim.

What this practically means

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Executive summary

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This is a High Court ruling by Mary Kasango, Judge, delivered on 22nd October 2008, on a notice of motion dated 25th May 2006 in which the plaintiff sought review and setting aside of an order of 29th June 2001 dismissing his suit under Order XVI Rule 6 of the Civil Procedure Rules for want of prosecution. The suit, filed on 17th March 1987, had been referred to arbitration; the award was set aside; and the plaintiff was allowed to amend his plaint in 1995. The plaintiff attributed the non-prosecution to lack of hearing dates, but the letters exhibited inviting fixing of the case ranged only from 2003 to 2005. The respondent, James Maina, opposed the application, contending that no explanation covered the period between 1993 and 2001, that the application came five years after dismissal, that parties had died after 21 years of delay, and that no extracted order was annexed. The court applied the Ivita v Kyumbu test — whether the delay is prolonged and inexcusable and whether justice can be done despite the delay — and held that the plaintiff slept on his rights and gave no satisfactory explanation, that the defendant would suffer prejudice since parties had died, and that, per Jivanji v Jivanji, the failure to annex an extracted order rendered the review application fatally defective. The application was dismissed with costs to James Maina. This is a first-instance ruling, not an appellate decision; it binds no lower courts and there was no decision under review beyond the court's own 2001 dismissal order, which was not disturbed.

Key legal issues

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01

Explanation for delay in prosecuting the suit and seeking reinstatement

Holding

The plaintiff failed to give a satisfactory explanation for the delay; apart from the arbitration and setting aside of the award, he slept on his rights

Reasoning

The suit was filed on 17th March 1987 and dismissed for want of prosecution on 29th June 2001. The letters exhibited inviting fixing of hearing dates ranged only from 2003 to 2005, leaving the period between 1993 and 2001 unexplained. Applying the Ivita v Kyumbu test, the delay was prolonged and inexcusable, and the death of parties meant justice could not be done despite the delay.

p. 2
02

Prejudice to the defendant from reinstatement

Holding

Reinstatement would prejudice the defendant because parties to the 21-year-old suit had died

Reasoning

The respondent deponed that as a consequence of the 21 years' delay in the suit, parties had died. The court found this established that the defendant was likely to suffer prejudice if the case were reinstated, which weighed against reinstatement under the Ivita test, since justice could no longer be done to the parties despite the delay.

p. 2
03

Requirement to annex an extracted order or decree to a review application

Holding

The application for review was fatally defective because the applicant failed to extract and annex the order the subject of review

Reasoning

Relying on Jivanji v Jivanji, the court held that a person applying for review must be aggrieved by a formal decree or order, and it is the duty of such a party to move the court to draw up and issue the formal decree or order. The respondent correctly faulted the application for failing to attach a copy of the extracted order, rendering the application fatally defective.

p. 3

Legal principles established

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  • The test for dismissal of a suit for want of prosecution is whether the delay is prolonged and inexcusable, and if so, whether justice can still be done despite the delay; it remains a matter of judicial discretion
  • A party applying for review must annex the extracted formal decree or order; without it the application for review is fatally defective

Court orders

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  1. 1.The plaintiff's notice of motion dated 25th May 2006 seeking review and setting aside of the order of dismissal of 29th June 2001 is dismissed
  2. 2.Costs of the application awarded to James Maina

Authorities

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Legislation

  • Civil Procedure RulesOrder XVI Rule 6
  • Civil Procedure RulesOrder XLIV
  • Civil Procedure Actsection 2

Cases cited (2)

  • IVITA vs KYUMBU
    null
  • JIVANJI vs JIVANJI & ANO
    (1929-30) 12 KLR 44
Jurisdiction invoked
Inherent review jurisdiction under the Civil Procedure Rules (the suit was dismissed under Order XVI Rule 6 of the Civil Procedure Rules; the application was brought for review of that dismissal)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "JULIUS MUCHIRA NGUU V ELIZABETH MUTHONI & 2 OTHERS [2008] KECA 22 (KLR)", Case Analysis (2008). Notice of motion dated 25th May 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2008/22/eng@2008-10-21

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