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Court of AppealPartially AllowedCivil Appeal No 45 of 2019· [2021] KECA 259 (KLR)

Vintage Investments Limited v Amcon Builders Limited & another (Civil Appeal 45 of 2019) [2021] KECA 259 (KLR)

Court of Appeal of Kenya
3 December 2021
DMD. K. MusingaJMJ. MohammedSKS. ole Kantai
2,915 words in judgment
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The bottom line

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Kenya's Court of Appeal dismissed a 22-year-old dormant lawsuit because the plaintiff delayed too long and the defendant could no longer defend itself fairly.

What this practically means

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Executive summary

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This is an appeal to the Court of Appeal against a ruling of P. J. O. Otieno, J. of 15th October 2018 in Civil Suit No. 255 of 1994 (Mombasa), in which the judge dismissed the 1st respondent's application to enforce, out of time, a 2003 mediation award of Kshs.7,272,886.50 arising from a 1992 construction contract, but declined to dismiss the underlying suit for want of prosecution and instead issued pre-trial directions. The appellant, Vintage Investment Limited, contended that having found there was neither a mediation agreement nor an arbitration award capable of adoption, the judge ought to have dismissed the suit for want of prosecution rather than allow a 26-year-old suit to proceed. Allowing the appeal, the Court of Appeal held that the learned judge failed to exercise his discretion judiciously. Applying the test in Allan v Sir Alfred McAlpine & Sons Ltd and the framework in Mbogo v Shah for appellate interference with discretion, the Court found the delay of over 22 years was inordinate and unexplained: the 1st respondent blamed a missing court file but took no steps to reconstruct it, while it was the appellant who eventually did so. The Court also found serious prejudice to the appellant, whose directors and witnesses had died, migrated, or become too old to recall the dispute, and whose documents had deteriorated. The Court reversed the decision below, dismissed the 1st respondent's suit for want of prosecution, awarded the costs of the High Court suit and of the appeal to the appellant, and made no orders as to costs in respect of the 2nd respondent.

Key legal issues

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01

Whether the learned judge exercised his discretion judiciously in declining to dismiss the suit for want of prosecution

Holding

The learned judge did not exercise his discretion judiciously; he failed to consider the inordinate delay, the absence of any explanation, and the prejudice to the appellant.

Reasoning

The suit filed in 1994 was not prosecuted for over 22 years. The only reason given was a missing court file, yet the 1st respondent took no steps to reconstruct it. The appellant demonstrated prejudice: directors and witnesses had died, migrated, or grown senile, and documents had been damaged. The judge failed to consider these material factors, amounting to a serious misdirection warranting appellate interference under the Mbogo v Shah principles.

p. 5
02

Whether the suit should be dismissed for want of prosecution

Holding

Yes; the appellant satisfied the three Allan v Sir Alfred McAlpine principles and the suit was dismissed.

Reasoning

The court adopted the test requiring inordinate delay, inexcusable delay, and serious prejudice. Given 22 years of unexplained inaction and demonstrated prejudice to the appellant, and the constitutional demand under Article 159 that justice be dispensed without undue delay, the only just outcome was dismissal of the suit.

p. 5

Legal principles established

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  • Discretion under Article 159 and Order 17 rule 2 must be exercised judiciously; a suit may be dismissed for want of prosecution where delay is inordinate, inexcusable and prejudicial.
  • An appellate court will interfere with the exercise of discretion by a lower court where it has misdirected itself, acted on wrong matters, or failed to consider relevant matters and so arrived at a wrong conclusion.
  • To succeed on an application for dismissal for want of prosecution, a defendant must show inordinate delay, that the delay is inexcusable, and that the delay is likely to cause serious prejudice.

Court orders

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  1. 1.The appeal is allowed
  2. 2.The 1st respondent's suit in the High Court at Mombasa, Civil Suit No. 255 of 1994, is dismissed for want of prosecution
  3. 3.The 1st respondent shall bear the costs of the suit in the High Court as well as the costs of this appeal
  4. 4.No orders as to costs in respect of the 2nd respondent

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159
  • Civil Procedure RulesOrder 17 rule 2

Cases cited (7)

  • Nilesh Premchand Mulji Shah & Another t/a Ketan Emporium vs M. D. Popat and Others
    [2016] eKLR
  • Shah vs Mbogo
    (1967) EA 116 / [1968] EA 116
  • ET Monks & Company Ltd vs Evans
    (1985) 584 KLR
  • Richard Nchapai Leiyagu vs Independent Electoral Boundaries Commission & 2 Others
    [2013] eKLR
  • Mbogo & Another vs Shah
    [1968] E.A. 93
  • Allan vs Sir Alfred Mc Alphine and Sons Ltd
    [1968] 1 ALL ER 543
  • Ngwambu Ivita vs Mutua Kyumbu
    [1984] KLR 441
On appeal from
High Court of Kenya
Civil Suit No. 255 of 1994 (ruling of P. J. O. Otieno, J.)
Jurisdiction invoked
Not expressly stated; first appeal to the Court of Appeal against a ruling of the High Court

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, "Vintage Investments Limited v Amcon Builders Limited & another (Civil Appeal 45 of 2019) [2021] KECA 259 (KLR)", Case Analysis (2021). Civil Appeal No 45 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/259/eng@2021-12-03

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