Charterhouse Bank Limited & another v Nation Media Group & another [2019] KECA 969 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the delay occasioned in prosecuting the suit was excusable or justifiable
Key legal issues
#Whether ongoing out-of-court settlement negotiations justify a prolonged failure to prosecute a suit
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.
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.
Whether statutory management of a corporate plaintiff constitutes a disability preventing time from running against it
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.
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.
Whether the respondent bore any duty to set the suit down for hearing or suffered no prejudice from the delay
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.
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.
Legal principles established
#- 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
#- 1.Appeal dismissed
- 2.The respondents shall have the costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- 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
#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
Costs
The respondents shall have the costs of the appeal.
Quotable passages
#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.
The respondents’ not responding to that letter was sufficient notice that the respondents were not keen to pursue an out of court settlement.
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.
The respondents shall have the costs 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.
Issues in the judgment
#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.
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.
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
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- JOO v MBO [2020] KECA 588 (KLR)[2020] KECA 588 (KLR)19 Jun 2020
Cite this brief
#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.