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ELCPartially AllowedFormerly RMCC No. 2004 of 1997 (Resident Magistrate's Court at Nairobi, Sheria House), transferred to the High Court· [2013] KEELC 141 (KLR)

Joyce Wamuhu & 2 others v The Commissioner Of Lands & another [2013] KEELC 141 (KLR)

High Court of Kenya
11 June 2013
JMJ. M. Mutungi
1,642 words in judgment
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The bottom line

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Kenya's High Court threw out a 15-year-old lawsuit because the plaintiffs let it sit idle and could not justify the delay.

What this practically means

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Executive summary

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The 2nd defendant, Rustam Hira, moved the High Court by notice of motion dated 21st December 2012 under Order 17 Rules 2(1) and (3) and Sections 1A and 3A of the Civil Procedure Act, seeking dismissal of the plaintiffs' suit for want of prosecution. The suit had been filed on 18th March 1997 in the Resident Magistrate's Court at Nairobi and was transferred to the High Court in March 2006 for lack of jurisdiction. An interim injunction was granted in 1997. After compliance with Order 11 in September 2011, no party attended the pre-trial conference of 18th October 2011 and nothing further occurred until the application was filed in January 2013. The 1st plaintiff, Joyce Mamuhu Gutau, opposed dismissal, explaining that a road accident in January 2010 impaired her mobility and prevented her from attending her advocate's office. The court, J. M. Mutungi J, held that the responsibility to prosecute a suit rests with the plaintiff, who must explain any delay. Applying Rajesh Rughani, E.A. Portland Cement and Ivita v Kyumbu, the court found no step had been taken for over a year, that the medical evidence showed the plaintiff was mobile by mid-2010 and able to sign her witness statement and affidavit in September 2011, and that the delay of over 15 years was inordinate and inexcusable, risking faded memory and lost evidence. The suit as against the 2nd defendant was dismissed, with costs of the application and the suit awarded to the 2nd defendant.

Key legal issues

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01

Whether no step had been taken for one year under Order 17 Rule 2(3)

Holding

The court was satisfied that no party had taken any step in prosecuting the suit for at least one year before the application

Reasoning

The file showed that after the parties complied with Order 11 and appeared ready for trial on 19th September 2011, nothing happened on the file. Neither party attended the pre-trial conference of 18th October 2011 and no step was taken until the 2nd defendant filed the motion in January 2013, exceeding the one-year threshold.

p. 3
02

Whether the 1st plaintiff's accident-related incapacity excused the delay

Holding

No - the medical evidence showed she was mobile by July 2010 and she signed her witness statement and affidavit in September 2011

Reasoning

The medical report indicated the plaintiff was discharged after five days and could walk with a crutch. Despite the alleged January 2010 accident, she was able to prepare and sign her witness statement filed on 16th September 2011 and her replying affidavit, undermining the claim of incapacity as an explanation for the inaction between 2011 and 2013.

p. 3
03

Whether delay prejudiced the fair trial of the suit

Holding

Yes - the passage of time erodes evidence and memory, making justice difficult in a suit pending over 15 years

Reasoning

Adopting Chesoni J's observations in Ivita v Kyumbu, the court held that justice must be justice to both parties; lapse of time can cause documents or witnesses to go missing and weaken evidence through faded human memory, and the alleged transfer of the suit property to a third party aggravated that risk.

p. 3

Legal principles established

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  • The responsibility to prosecute a suit lies with the plaintiff, who must explain any delay to the court's satisfaction when a dismissal application is made
  • Where there is good reason for delay and the delay is not inordinate, the court should exercise its discretion in favour of sustaining the suit
  • Prolonged and unexplained delay is presumed inexcusable and may lead to dismissal of the suit

Court orders

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  1. 1.The plaintiffs' suit as against the 2nd Defendant is dismissed
  2. 2.The Plaintiffs/Respondents to pay the 2nd Defendant/Applicant the costs of the application and the costs of the suit

Authorities

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Legislation

  • Civil Procedure RulesOrder 17 Rule 2(1) and (3)
  • Civil Procedure RulesOrder 11
  • Civil Procedure ActSection 1A
  • Civil Procedure ActSection 3A

Cases cited (3)

  • RAJESH RUGHANI VS. FIFTY INVESTMENTS LTD & ANOTHER
    HCCC No. 3038 of 1996
  • E.A PORT LAND CEMNET CO. LTD VS. TAUSI ASSURANCE CO. LTD & ANOTHER
    HCCC No. 1946 of 1994 – Milimani Commercial
  • IVITA VS. KYUMBU
    [1984] KLR 141
Jurisdiction invoked
Order 17 Rule 2(1) and (3) of the Civil Procedure Rules; Sections 1A and 3A of the Civil Procedure Act

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, "Joyce Wamuhu & 2 others v The Commissioner Of Lands & another [2013] KEELC 141 (KLR)", Case Analysis (2013). Formerly RMCC No. 2004 of 1997 (Resident Magistrate's Court at Nairobi, Sheria House), transferred to the High Court. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2013/141/eng@2013-06-11

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