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ELCDismissedNot stated in the judgment· [2014] KEELC 569 (KLR)

Naftal Okwanyo Masara & another v Town Clerk & 3 others [2014] KEELC 569 (KLR)

High Court of Kenya
9 June 2014
1,449 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The Defendants/Applicants filed a Notice of Motion dated 12th September 2013 seeking dismissal of the suit for want of prosecution, on the grounds that the suit filed in June 2010 had not been prosecuted, and costs. The application, brought under Sections 3 and 3A of the Civil Procedure Act and Order 17 Rule 2(3) of the Civil Procedure Rules, was opposed by the Plaintiffs through a Replying Affidavit of the 1st Plaintiff, Naftali Okwanyo Masara, who explained the delay and urged that the matter be heard on merit rather than on technicality, contending that the mistake of counsel should not be visited on the parties. The parties canvassed the motion by written submissions. Justice L. Gacheru held that the power to dismiss a suit for want of prosecution is discretionary and must be exercised judicially, applying the test in Ivita v Kyumbu: whether the delay is prolonged and inexcusable and whether justice can nevertheless be done. The court found that since the suit's filing in June 2010, multiple applications had been prosecuted - including the Defendants' unsuccessful application to set aside restraining orders (dismissed by Mbogholi J on 21st September 2011) and an Enforcement Notice dated 15th September 2011 which prompted a judicial review application decided by W.K. Korir J on 24th October 2012 - during which the Plaintiffs could not set the matter down. The Plaintiffs' travel abroad for treatment and their former advocate's failure to set the matter down were also excusable, counsel's mistake not being attributable to litigants. No intentional, inordinate or inexcusable delay nor prejudice to the Defendants was established. The motion was dismissed entirely with costs to the Plaintiffs.

Key legal issues

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01

Whether the suit should be dismissed for want of prosecution under Order 17 Rule 2(3)

Holding

The application was not merited; the delay was excusable and no prejudice was shown

Reasoning

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.

p. 3
02

Whether the mistake of the plaintiffs' advocate should cause dismissal

Holding

No; the mistake of an advocate should not be visited on the party

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.The Defendants/Applicants' Notice of Motion dated 12th September 2013 is dismissed entirely
  2. 2.Costs of the application awarded to the Plaintiffs

Authorities

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Legislation

  • Civil Procedure ActSection 3
  • Civil Procedure ActSection 3A
  • Civil Procedure ActSections 1A and 1B
  • Civil Procedure RulesOrder 17 Rule 2(3) and Rule 2(1)
  • Civil Procedure RulesOrder 11
  • Constitution of KenyaArticle 159

Cases cited (4)

  • Joseph Ndungu Gachoka Vs United Insurance Co. Ltd
    HCCC No. 2309 of 1996
  • Ivita Vs Kyumbu
    (1984) KLR 441
  • Concord Insurance Co. Ltd Vs Susan Nyambura Hunga
    Civil App. No. 251 of 2002
  • Sagoo Vs Bharij
    Nairobi Civil Suit No. 657 of 1989
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

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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, "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.