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Court of AppealPartially AllowedCivil Appeal No. 273 of 2012 (consolidated with Civil Appeal No. 65 of 2013)· [2019] KECA 834 (KLR)

Sanjita Shah v Credit Agricole Indosuez Limited Formerly trading as Banque Indosuez & 3 others [2019] KECA 834 (KLR)

Court of Appeal of Kenya
8 March 2019
3,101 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal revived two long-delayed bank lawsuits, confirming that courts should revive dormant cases when justice can still be served.

What this practically means

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Executive summary

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This Court of Appeal judgment, delivered at Nairobi on 8th March 2019 by a coram of Nambuye, Gatembu Kairu and J. Mohammed, JJA, determines two consolidated appeals (Civil Appeal No. 273 of 2012 by Sanjita Shah and Civil Appeal No. 65 of 2013 by Nilam Doshi) against the ruling of Kimondo, J of 2nd December 2011 dismissing three consolidated High Court suits (HCCC Nos. 802, 803 and 804 of 2002) for want of prosecution under Order 17 Rule 2 of the Civil Procedure Rules. The suits concerned claims against Credit Agricole Indosuez Limited for accounts of deposits and substantial sums, with the 2nd, 3rd and 4th respondents joined as alleged fraudulent employees and a third party. The sole issue was whether the Court should interfere with the exercise of the lower court's discretion. Applying the Ivita v Kyumbu test and the permissive nature of the Order 17 Rule 2 power as articulated in Eurobank Limited v Shah Munge & Partners, the Court accepted there was delay, but found that the adjournments were not attributable to any single party, and that the Judge had failed to consider uncontroverted evidence that the appellants had filed their bundles of documents and had already fixed the suits for hearing. The circumstances called for sustaining rather than dismissing the suits. The appeals were allowed, the ruling of 2nd December 2011 was set aside, the two suits were directed to be fixed for mention before the Registrar within 21 days to obtain hearing dates, and the Court made no orders as to costs.

Key legal issues

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01

Whether the High Court properly exercised its discretion in dismissing the consolidated suits for want of prosecution

Holding

The appeal was allowed because the Judge failed to consider relevant factors - that the appellant had already filed a separate bundle of documents and had fixed the matter for a hearing date - and the circumstances called for sustaining rather than dismissing the suits.

Reasoning

The Court accepted there was delay, but found the adjournments were not attributable to any one party. The Judge failed to consider the uncontroverted affidavit evidence that the appellant had filed its bundle of documents and had already obtained a hearing date by the time the notice to show cause was heard. Applying Ivita v Kyumbu and Eurobank Limited v Shah Munge & Partners, dismissal was inappropriate where justice could still be done; the suits were ready for hearing.

p. 4

Legal principles established

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  • A party seeking to interfere with an exercise of discretion by a lower court must demonstrate that the lower court misdirected itself, considered matters it should not have, or failed to take into account matters it should have, arriving at a wrong decision.
  • Before dismissing a suit for want of prosecution, the court must consider whether the delay is inordinate and excusable, the prejudice likely to be suffered, whether the delay amounts to a denial of justice, and whether justice can still be done despite the delay.
  • The power to dismiss a suit for want of prosecution under Order 17 Rule 2 is permissive, not mandatory; even where delay is inordinate and unexplained, the court may save the suit subject to conditions.

Court orders

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  1. 1.Appeals allowed and the ruling and order of the lower court given on 2nd December 2011 set aside
  2. 2.HCCC No. 802 of 2002 and HCCC No. 803 of 2002 to be fixed for mention before the Registrar of the High Court within 21 days from the date of delivery of the ruling with a view to giving dates for hearing
  3. 3.No orders as to costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 17 Rule 2(1) and (2)
  • Appellate Jurisdiction ActSection 3B

Cases cited (6)

  • Mbogo & another v Shah
    (1968) EA 93
  • Ivita v Kyumbu
    [1984] KLR 441
  • Moses Muriira Maingi & 2 others v Maingi Kamuru & another
    [2013] eKLR
  • Fitz Patrick v Batger & Co. Ltd
    [1967] 2 ALL ER 657
  • Paxton v Allsopp
    [1971] 3 ALL ER 370
  • Eurobank Limited v Shah Munge & Partners
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 803 of 2002 and H.C.C.C. No. 802 of 2002
Jurisdiction invoked
First appellate jurisdiction over appeals from the High Court under the Appellate Jurisdiction Act (Section 3B invoked by counsel); appeals against exercise of discretion in dismissing suits for want of prosecution under Order 17 Rule 2 of the Civil Procedure Rules

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, "Sanjita Shah v Credit Agricole Indosuez Limited Formerly trading as Banque Indosuez & 3 others [2019] KECA 834 (KLR)", Case Analysis (2019). Civil Appeal No. 273 of 2012 (consolidated with Civil Appeal No. 65 of 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/834/eng@2019-03-08

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