Royal Media Services Limited v Telkom Kenya Limited & 13 others [2016] KECA 389 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that a case can be thrown out if a party sits on it for years without a good excuse, even hoping for a settlement.
What this practically means
#Executive summary
#Key legal issues
#The principles governing dismissal of a suit for want of prosecution
The court adopted the Ivita v Kyumbu test: the delay must be prolonged and inexcusable, and the defendant must show prejudice, before the suit will be dismissed; and the Allen v Sir Alfred McAlpine principles of inordinate, inexcusable delay and prejudice.
The Court restated the Ivita test requiring the court to assess whether the delay is prolonged and inexcusable and whether justice can nevertheless be done, with the defendant bearing the burden of demonstrating prejudice. It also noted the English Allen v Sir Alfred McAlpine tripartite principles: delay must be inordinate, inexcusable, and likely to cause prejudice. These principles framed the review of the trial judge's exercise of discretion.
Whether the appellant's explanations for the delay were excusable
The Court rejected both explanations - the expectation of an amicable settlement and Dr Kamau Kuria's engagement with the Goldenberg Commission - holding they did not justify a three-year delay in prosecuting the suit.
The Court found that an expectation of settlement is not a reasonable explanation for taking no steps for three years, and that while the Goldenberg Commission proceedings were involving, the suit could have been handed over to another advocate. Allowing the suit to subsist indefinitely would hold the respondents at ransom. The rights of all parties must be balanced against the reasons given for failure to prosecute.
The standard for appellate interference with a trial judge's discretion
The Court applied Mbogo v Shah, under which interference is warranted only where the discretion was exercised on a clearly wrong principle, through misdirection, or on irrelevant matters, resulting in a wrong conclusion.
The appeal was framed as a challenge to the exercise of discretion by the trial judge. Restating the Mbogo v Shah principle, the Court held it would not interfere unless the discretion was clearly wrong, the judge misdirected himself, acted on irrelevant matters, or failed to consider relevant matters and so arrived at a wrong conclusion. Finding the reasons for delay unreasonable, the Court saw no basis for interference.
Legal principles established
#- An appellate court will not interfere with the exercise of discretion by a trial court unless the discretion was exercised erroneously in law, on the Mbogo v Shah principles
- A suit will only be dismissed for want of prosecution where the delay is prolonged and inexcusable and the defendant satisfies the court that it will be prejudiced, such that justice cannot be done despite the delay
- Filing written submissions does not discharge counsel from the duty to attend court to highlight them or to apply for their adoption
- A litigant cannot hold the opposing party at ransom by allowing a suit to subsist indefinitely pending the availability of a particular advocate; the option of another advocate taking over the matter must be considered
Court orders
#- 1.The appeal is dismissed
- 2.Costs of the appeal to the respondents
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C No 15 of 2000
- Jurisdiction invoked
- First appellate jurisdiction under the retired Constitution of Kenya read with the Court of Appeal's appellate jurisdiction over High Court civil decisions
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Royal Media Services Limited v Telkom Kenya Limited & 13 others [2016] KECA 389 (KLR)", Case Analysis (2016). Civil Appeal No 31 of 2008. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/389/eng@2016-07-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.