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Court of AppealAllowedCivil Appeal No. 256 of 2016· [2018] KECA 346 (KLR)

Ecobank Ghana Limited v Triton Petroleum Co Limited & 5 others [2018] KECA 346 (KLR)

Court of Appeal
27 April 2018
EGE. M. GithinjiHOHannah OkwenguJMJ. Mohammed
3,663 words in judgment
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The bottom line

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Kenya's Court of Appeal reinstated Ecobank's US$2.4 million case, ruling suits should only be dismissed for delay when prejudice is actually proven.

What this practically means

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Executive summary

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The Court of Appeal allowed Ecobank Ghana Ltd's appeal against a High Court ruling by Mutava, J. dismissing its suit for want of prosecution under Order 17 Rules 2(1) and (3) of the Civil Procedure Rules. Ecobank had sued Triton Petroleum and guarantors for US$2,417,797.99. The High Court held that attempting to fix the suit for hearing when it was not ready was no step at all and ran contrary to the overriding objectives of the Civil Procedure Act. The Court of Appeal, in a unanimous judgment, set out the guiding principles: the court considers whether the delay is inordinate, whether it is excusable, and whether any party is prejudiced or a fair trial rendered impossible. Adopting the definition in Augusta Sugar Co. v Haley, it held that a step in the prosecution of a suit means an active measure intended and calculated to hasten the suit to judgment, not a mere passive effort to keep it on the docket. The court found the appellant had given a credible, satisfactory and sufficient explanation for the delay: it had commenced discovery, procured a hearing date that was mis-minuted, and the court file went missing during a re-organisation of the Commercial Division registry. Crucially, the respondents had failed to demonstrate the prejudice they would suffer, a burden the court confirmed rests on the applicant for dismissal. The suit had also been filed during the transition before the Order 11 pre-trial provisions came into force. The Court of Appeal set aside the High Court ruling, reinstated Civil Suit No. 24 of 2009, and awarded costs to the appellant in both courts.

Key legal issues

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01

What amounts to a 'step' in the prosecution of a suit under Order 17 Rule 2 of the Civil Procedure Rules

Holding

A step is an active measure taken by a plaintiff intended and calculated to hasten the suit to judgment; the term is not defined in the Civil Procedure Rules or Act, so the court adopted the definition from Augusta Sugar Co. v Haley.

Reasoning

The court noted that neither the Civil Procedure Rules nor the Civil Procedure Act defines what amounts to a step, and it was unable to trace any local decision on the point. It therefore adopted the American definition that a step is something more than a passive effort to keep the suit on the docket and must be an active measure intended and calculated to hasten the suit to judgment. The appellant's filing of a list of documents and efforts to fix the suit for hearing satisfied this test in the circumstances.

p. 6
02

The test for dismissal of a suit for want of prosecution

Holding

The guiding principles are whether the delay is inordinate, whether it is excused, and whether either party is prejudiced or a fair trial is no longer possible.

Reasoning

The court restated the test from Ivita v Kyumbu as adopted in Moses Muriira Maingi and the principle in Salkas Contractors and Allen v Sir Alfred McAlpine: the court must be satisfied whether the inordinate delay is excusable and, if not, whether justice can still be done despite the delay. Applying these principles, the appellant had given a credible, satisfactory and sufficient explanation for the delay, and the respondents had not demonstrated prejudice.

p. 5
03

Burden of proving prejudice in a dismissal for want of prosecution application

Holding

The party applying for dismissal must show the prejudice it would suffer from the delay; the respondents here failed to address prejudice.

Reasoning

As stated in Ivita v Kyumbu, it is upon the party making the application to show the court the prejudice it would suffer as a result of the delay. From the supporting affidavit and submissions before the High Court, the respondents did not address the prejudice they were likely to suffer, despite the appellant raising the issue given the colossal sum of US$2,417,797.99 in contention. This failure weighed heavily in favour of reinstating the suit.

p. 6
04

Whether the trial Judge erred in exercising his discretion

Holding

The Judge erred: the appellant gave a credible explanation for the delay, and failure to comply with pre-trial steps under Order 11 during the transition period should not of itself have led to dismissal.

Reasoning

The suit was filed in January 2009 before the new Order 11 pre-trial provisions came into operation in September 2010, so failure to comply with those steps should not of itself have led to dismissal. The appellant had commenced discovery, procured a hearing date which was mis-minuted, and the court file went missing during re-organisation. The Judge should also have taken cognizance of the colossal amount in contention and the public interest as the appellant is a deposit-taking and lending institution.

p. 6

Legal principles established

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  • In considering whether to dismiss a suit for want of prosecution, courts will consider whether the delay is inordinate, whether it can be excused, and whether either party is likely to be prejudiced or a fair trial rendered impossible as a result of the delay.
  • A step in the prosecution of a suit means an active measure intended and calculated to hasten the suit to judgment, not a mere passive effort to keep the suit on the docket.
  • It is upon the party applying for dismissal for want of prosecution to show the prejudice it would suffer as a result of the delay.
  • The Court of Appeal will not interfere with the exercise of discretion by an inferior court unless satisfied that the decision is clearly wrong, that the court misdirected itself, acted on wrong matters or failed to consider relevant matters, arriving at a wrong conclusion.

Court orders

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  1. 1.The appeal is allowed
  2. 2.The Ruling and Order of the High Court dated and delivered on 21st June 2012 is set aside
  3. 3.The appellant's Civil Suit No. 24 of 2009 in the High Court is reinstated
  4. 4.Costs in the High Court and in this Court are awarded to the appellant

Authorities

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Legislation

  • Civil Procedure RulesOrder 17 Rules 2(1) and (3)
  • Civil Procedure RulesOrder 51 Rule 1
  • Civil Procedure RulesOrder 11
  • Civil Procedure ActSections 1A, 1B and 3A

Cases cited (8)

  • Mbogo & Another v Shah
    [1968] EA 96
  • Rajesh Rughani v Fifty Investments Limited & Kembi & Muhia Advocates
    [2016] eKLR
  • Eliud Munyua v Francis Murerwa
    [2014] eKLR
  • Moses Muriira Maingi & 2 Others v Maingi Kamuru & Another
    Civil Appeal No. 151 of 2010
  • Ivita v Kyumbu
    (1984) KLR 441
  • Allen v Sir Alfred McAlpine & Sons Ltd
    [1968] 1 All ER 543
  • Salkas Contractors Limited v Kenya Petroleum Refineries Limited
    [2004] eKLR
  • Augusta Sugar Co. v Haley
    163 La. 814, 816, 112 So. 731, 732 (1927)
On appeal from
High Court of Kenya at Nairobi
Civil Suit No. 24 of 2009
Jurisdiction invoked
Appellate jurisdiction of the Court of Appeal over appeals from the High Court (second appeal against an exercise of discretion in a civil suit)

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, "Ecobank Ghana Limited v Triton Petroleum Co Limited & 5 others [2018] KECA 346 (KLR)", Case Analysis (2018). Civil Appeal No. 256 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/346/eng@2018-04-27

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