Naftal Okwanyo Masara & another v Town Clerk & 3 others [2014] KEELC 569 (KLR)
The bottom line
#The High Court refused to dismiss a slow-moving lawsuit, ruling that delays caused partly by the other side and by a lawyer's mistake do not kill a case.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit should be dismissed for want of prosecution under Order 17 Rule 2(3)
The application was not merited; the delay was excusable and no prejudice was shown
The court has discretion under Order 17 Rule 2(3) and Section 3A to dismiss a suit for want of prosecution, but must exercise it judicially. Applying Ivita v Kyumbu, the court found the delay explained by the Defendants' application to set aside restraining orders, an Enforcement Notice prompting judicial review proceedings, the plaintiffs' travel abroad for treatment, and former counsel's failure to set the matter down. No intentional, inordinate or inexcusable delay nor prejudice to the Defendants was demonstrated.
Whether the mistake of the plaintiffs' advocate should cause dismissal
No; the mistake of an advocate should not be visited on the party
Relying on Concord Insurance Co. Ltd v Susan Nyambura Hunga, the court held that a litigant should not be penalised for their counsel's failure to set the matter down for hearing. The plaintiffs also explained they were occupied defending the Defendants' applications and pursuing judicial review of the Enforcement Notice, and had travelled out of the country for treatment.
Legal principles established
#- The power to dismiss a suit for want of prosecution is discretionary and must be exercised judicially
- The test is whether the delay is prolonged and inexcusable and whether justice can still be done despite the delay
- Mistakes of counsel should not be visited on the litigant
Court orders
#- 1.The Defendants/Applicants' Notice of Motion dated 12th September 2013 is dismissed entirely
- 2.Costs of the application awarded to the Plaintiffs
- Jurisdiction invoked
- Sections 3, 3A, 1A and 1B of the Civil Procedure Act and Order 17 Rule 2(3) of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Naftal Okwanyo Masara & another v Town Clerk & 3 others [2014] KEELC 569 (KLR)", Case Analysis (2014). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/569/eng@2014-06-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.