Governor Balloon Safaris Limited v Skyship Company Limited & another (Civil Appeal 261 of 2014) [2024] KECA 117 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that plaintiffs who sit on their cases for years can lose them entirely, even if the defendant never proves actual prejudice.
What this practically means
#Executive summary
#Key legal issues
#Whether the appellant's delay in prosecuting its suit was inordinate and excusable
The delay was inordinate and inexcusable; awaiting the outcome of the Kisii case, to which the appellant was not a party and in which it had not sought to be enjoined, was not a valid reason, and the pending but abandoned strike-out application did not amount to prosecuting the suit
The appellant conceded the delay and relied solely on the pendency of the Kisii case between the respondents. It never applied to be enjoined or sought a stay, so the Kisii case could not justify inaction, nor did it excuse non-compliance with discovery obligations. The only interlocutory application had been adjourned generally and never revived. Under the then-applicable Order XVI Rule 5, the plaintiff had to set the suit down within three months of the close of pleadings or general adjournment.
Whether prejudice must be shown by the applicant for dismissal for want of prosecution
While it is for the applicant to show the prejudice it would suffer, the court may still dismiss a suit even where the defendant has not demonstrated prejudice, since a suit cannot be allowed to hang over a party indefinitely; justice delayed is justice denied
The trial court had acknowledged that the 1st defendant did not demonstrate prejudice but held that a plaintiff's inaction cannot leave a suit hanging over a party, invoking Article 159 2(c) of the Constitution on expeditious dispensation of justice. This Court affirmed that weighing, citing Ivita's observation that justice is justice to both plaintiff and defendant, considering missing documents and fading human memory.
Whether the trial court erred in computing time and in the applicable rules
The complaint of miscomputation was misconceived because the application was governed by the repealed Civil Procedure Rules (Order XVI, Rule 5), not the Civil Procedure Rules, 2010
Order XVI Rule 5 required the plaintiff to set the suit down for hearing within three months of the close of pleadings, removal from the hearing list, or general adjournment; failing which the defendant could set it down or apply for dismissal. The appellant did not observe this dictate, so the trial court's computation under the correct rules could not be faulted.
Whether costs awarded to the 2nd respondent should be upset on the ground that it was a non-existent legal entity
No; no evidence was presented that the 2nd respondent did not exist, the point was not raised in the trial court, the appellant itself joined the 2nd respondent, and the issue was concluded by a consent recorded before Ochieng, J
The appellant provided no proof of non-existence and could not first raise the point on appeal having itself dragged the 2nd respondent into the proceedings. The consent order of 25th August 2014 before Ochieng, J also bore on this issue. Costs are discretionary and follow the event; no misdirection by the trial court was discerned.
Legal principles established
#- An appellate court will not interfere with the exercise of discretion by a lower court unless the decision is clearly wrong - misdirected, founded on wrong matters, or omitting relevant matters leading to a wrong conclusion
- The test for dismissing a suit for want of prosecution: the court must first consider whether the inordinate delay is excusable, and if not satisfied that it is excusable, may dismiss the suit; if excusable, it then asks whether justice can still be done notwithstanding the delay
- Where a plaintiff does not give sufficient reason for a prolonged delay, the court presumes the delay was prolonged and inexcusable and may dismiss the suit
- Guiding principles for want-of-prosecution applications: whether the delay is inordinate; if so, whether it can be excused; and whether either party is likely to be prejudiced or a fair trial rendered impossible by the delay
Court orders
#- 1.The appeal is dismissed with costs to the respondents
- On appeal from
- High Court of Kenya
- not stated in the judgment
- Jurisdiction invoked
- First appeal to the Court of Appeal against a ruling and order of the High Court dismissing the suit for want of prosecution (the judgment does not cite the specific appellate provision; it is not a Supreme Court Article 163(4)(a) appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Governor Balloon Safaris Limited v Skyship Company Limited & another (Civil Appeal 261 of 2014) [2024] KECA 117 (KLR)", Case Analysis (2024). Civil Appeal (appellant's suit against respondents over a 33-year agreement dated 1st August 2000). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/117/eng@2024-02-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.