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Court of AppealDismissedCivil Appeal No. 7 of 2013

Charterhouse Bank Limited & another v Nation Media Group & another [2019] KECA 969 (KLR)

Court of Appeal of Kenya
8 February 2019
3,161 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 dismissed Charterhouse Bank's 13-year-old defamation appeal, ruling that vague settlement talks never excuse years of inaction in prosecuting a case.

What this practically means

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Executive summary

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This interlocutory appeal challenged a ruling of the High Court (Odunga, J.) dated 9th July 2012 in HCCC No. 1238 of 2004, dismissing a defamation suit by Charterhouse Bank Limited and Sanjay Shah against Nation Media Group and Wangethi Mwangi for want of prosecution under Order 17 rule 2(1) of the Civil Procedure Rules, after approximately seven years of inaction. The appellants attributed the delay to ongoing settlement negotiations and, in written submissions only, to the first appellant's placement under statutory management by the Central Bank of Kenya, which they contended was a period of disability. The Court of Appeal framed a single issue: whether the delay was excusable or justifiable. It held that a single unanswered settlement letter over seven years could not prove ongoing negotiations, and the respondents' non-response sufficed as notice that settlement was closed. Statutory management did not disable the bank, which had opposed the dismissal application and filed the appeal through counsel, and the ground could not avail the second appellant in any event. The duty to prosecute lay with the plaintiffs; the respondents' evidence of prejudice to witness availability and memory after 13 years was uncontroverted. The court applied Allen v Sir Alfred McAlpine & Sons Ltd and Nilani v Patel and dismissed the appeal, awarding the respondents the costs of the appeal.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the delay occasioned in prosecuting the suit was excusable or justifiable

Key legal issues

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01

Whether ongoing out-of-court settlement negotiations justify a prolonged failure to prosecute a suit

Holding

Mere proposal of settlement, without evidence of active negotiations, does not excuse inordinate delay; a single unanswered letter over seven years cannot sustain such an excuse.

Reasoning

The court examined the only documentary evidence of negotiations: a letter dated 11th May 2006 proposing settlement which the respondents never answered. The respondents' non-response was itself sufficient notice that they were not keen on settlement. The circumstances did not reflect parties in a state of negotiations, rendering the excuse incredible and the delay inordinate and inexcusable.

p. 4
02

Whether statutory management of a corporate plaintiff constitutes a disability preventing time from running against it

Holding

Statutory management did not disable the bank from litigating; it was ably represented by advocates who prosecuted the dismissal application and this appeal, and the disability could not apply to the second appellant in any event.

Reasoning

The court noted the bank's advocates never deposed to difficulties obtaining instructions, and the bank managed to oppose the dismissal application and file the appeal, actions inconsistent with the claimed incapacity. The ground was raised only in written submissions and was never the fulcrum of the appellants' response to the dismissal application.

p. 4
03

Whether the respondent bore any duty to set the suit down for hearing or suffered no prejudice from the delay

Holding

The duty to prosecute rests on the plaintiff alone, and the respondents' evidence of prejudice to witnesses' availability and memory after 13 years was well-founded and uncontroverted.

Reasoning

Relying on Nilani v Patel, the court held the plaintiff pursuing a remedy must take all necessary steps for expeditious determination. The respondents explained that reporters and writers had a high turnover and memories fade, making a fair trial after 13 years almost impossible. The appellants did not controvert these arguments, and the High Court judge's discretion was properly exercised.

p. 5

Legal principles established

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  • Until a credible excuse is made out, the natural inference is that a delay in prosecuting a suit is inexcusable.
  • The duty to prosecute a suit lies with the plaintiff; a defendant is not obliged to set the suit down for hearing, and unexplained delay attracts dismissal for want of prosecution.

Court orders

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  1. 1.Appeal dismissed
  2. 2.The respondents shall have the costs of the appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 1238 of 2004
Jurisdiction invoked
First appellate jurisdiction over an interlocutory appeal from the High Court (Court of Appeal, Civil Appeal No. 7 of 2013)

Relief refused

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Setting aside the High Court ruling dismissing the suit for want of prosecution

The explanation of ongoing settlement negotiations was incredible and the delay was inordinate and inexcusable; prejudice to the respondents from a trial 13 years after publication was uncontroverted

p. 4

Costs

The respondents shall have the costs of the appeal.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

One letter, in a period of 7 years of thereabouts simply falls short of disapproving the assertions that the appellants were not keen in prosecuting their suit resulting in the inordinate inexcusable delay.
p. 4Settlement negotiations as excuse for delay
The respondents’ not responding to that letter was sufficient notice that the respondents were not keen to pursue an out of court settlement.
p. 4Effect of non-response to settlement proposal
it is not enough to request settlement of a matter and await such settlement indefinitely since the duty to prosecute the matter was the appellants. The upshot is that the appeal ought to fail on those sentiments. It is so ordered.
p. 5Final orders - duty to prosecute and disposition
The respondents shall have the costs of the appeal.
p. 5Costs of the appeal
It is only too trite to say that as in every civil suit, it is the plaintiff who is in pursuit of a remedy, that he should take all the necessary steps at his disposal to achieve an expeditious determination of his claim.
p. 4Plaintiff's duty to prosecute (quoting Nilani v Patel)

Issues in the judgment

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minor

The judgment opens by dating the High Court ruling as 9th July 2002, but the coram and subsequent passages date it 9th July 2012; the 2002 date appears to be a typographical error.

minor

The judgment states the letter proposing settlement was never responded to 'by the appellants', though it was addressed to and unanswered by the respondents; the surrounding narrative confirms the respondents did not reply.

minor

The judgment states the inter partes hearing was set for 26th November 2004, which precedes the ex parte orders of 23rd December 2004; the dates appear inconsistent.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Charterhouse Bank Limited & another v Nation Media Group & another [2019] KECA 969 (KLR)", Case Analysis (2019). Civil Appeal No. 7 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/969/eng@2019-02-08

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