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Court of AppealPartially AllowedCivil Appeal No. 16 of 2017· [2020] KECA 827 (KLR)

Pkiech Chesimaya v Limakorwai Achipa

Court of Appeal of Kenya
3 April 2020
GIGithinjiHOHannah OkwenguJMJ. Mohammed
3,922 words in judgment
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The bottom line

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Kenya's Court of Appeal reinstated a decade-old land suit, confirming that dismissal for delay requires proof a fair trial is no longer possible.

What this practically means

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Executive summary

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This interlocutory appeal arose from a ruling of the Environment and Land Court at Kitale (Obaga, J.) dismissing the appellant's suit over Land Parcel No. West Pokot/Chepareria/812 for want of prosecution, some ten years after the plaint was filed. The respondent, who held a decree from a Land Disputes Tribunal award adopted in Kitale SPMCCC Land Case No. 22 of 2005 and was in occupation of 8 acres of the suit land, applied for dismissal under Order 17 Rule 2(3) of the Civil Procedure Rules, citing the appellant's inordinate delay and his advanced age and failing memory. The trial Judge found no sufficient cause for the delay, noted the appellant had not appealed the Tribunal award, and dismissed the suit as a 'backdoor' appeal. J. Mohammed, JA, delivering the leading judgment, restated the Ivita test: the court must consider whether the delay is inordinate and inexcusable, and whether justice can still be done despite it, with the burden of proving prejudice on the applicant. The Court found the trial Judge rightly held the delay inordinate and unexcused, but erred in failing to consider whether justice could still be done and in failing to weigh the prejudice to the 89-year-old appellant, who stood to lose 8 acres of registered land, against that of the respondent who was already in occupation. The Court further held that the appellant's prior conduct and the 'backdoor appeal' issue were extraneous to a want-of-prosecution application and could only be determined after a full hearing. The appeal was allowed with no orders as to costs; the ruling of 29th August 2016 was set aside, the suit reinstated, and the appellant directed to fix it for hearing within 60 days. Okwengu, JA concurred; judgment was delivered under Rule 32(3) as Githinji, JA had retired.

Key legal issues

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01

Test for dismissal of suit for want of prosecution

Holding

The court must consider whether the delay is inordinate, whether it is excused, and whether either party is prejudiced such that a fair trial is no longer possible; if justice can still be done, dismissal should be refused.

Reasoning

The Court adopted the Ivita test and subsequent restatements: where the delay is prolonged and inexcusable, the applicant must still show that justice cannot be done despite the delay. Justice is owed to both parties, and the risk to evidence and human memory must be considered. The trial court dismissed the suit on delay alone without asking whether a fair trial remained possible.

p. 3
02

Burden of proving prejudice on an application to dismiss for want of prosecution

Holding

The party seeking dismissal bears the burden of demonstrating the prejudice it would suffer; mere assertion of deteriorating memory due to age, without more, did not displace the appellant's right to a hearing on the merits.

Reasoning

Relying on Ivita and John Harun Mwau v Standard Limited, the Court held that nothing concrete was shown to establish that witnesses were unavailable or that a fair trial was impossible. The respondent, already in occupation of the suit land, would suffer no greater prejudice if the suit proceeded, whereas the elderly appellant stood to lose 8 acres of registered land by being locked out of the seat of justice.

p. 4
03

Irrelevance of prior conduct and the 'backdoor appeal' finding on a want-of-prosecution application

Holding

The learned Judge erred in taking into account the appellant's failure to appeal the Tribunal's award, since that issue was not properly before the court on a want-of-prosecution application and could only be competently determined after a full hearing.

Reasoning

The trial Judge had found the suit to be a 'backdoor' appeal against the Tribunal award and a second bite of the cherry. The Court held this consideration was extraneous to the dismissal application, amounting to a failure to take into account relevant matters and a taking into account of irrelevant ones, vitiating the exercise of discretion.

p. 5

Legal principles established

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  • An appellate court will not interfere with the exercise of discretion by an inferior court unless the decision is clearly wrong, based on misdirection, reliance on wrong matters, or failure to consider relevant matters leading to a wrong conclusion.
  • The test for dismissal of a suit for want of prosecution is whether the delay is prolonged and inexcusable and, if so, whether justice can still be done despite the delay; the applicant must show prejudice such that justice cannot be done.
  • It is for the party applying for dismissal for want of prosecution to demonstrate the prejudice it would suffer as a result of the delay.
  • Substantial justice is to be elevated over procedural technicalities, but the court must weigh the prejudice to both parties before striking out a document or dismissing a suit.
  • Previous conduct of a party prior to filing a suit is not a proper consideration on an application to dismiss a suit for want of prosecution and can only be dealt with after a full hearing.

Court orders

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  1. 1.The appeal is allowed with no orders as to costs
  2. 2.The Ruling and Order of the Environment and Land Court dated 29th August, 2016 is set aside
  3. 3.Kitale Environment and Land Court Land Case No. 200 of 2006 is reinstated
  4. 4.The appellant to proceed to fix the suit for hearing within 60 days from the date of the judgment
On appeal from
Environment and Land Court of Kenya at Kitale
Kitale ELC Case No. 200 of 2006
Jurisdiction invoked
First appellate/interlocutory appeal to the Court of Appeal under the Court of Appeal Rules; Rule 32(3) of the Court Rules invoked for delivery of judgment

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, "Pkiech Chesimaya v Limakorwai Achipa", Case Analysis (2020). Civil Appeal No. 16 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/827/eng@2020-04-03

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