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ELCOtherNot stated in the judgment text provided· [2014] KEELC 600 (KLR)

Richand Velji Shah & 3 others v Viktar Maina Ngunjiri [2014] KEELC 600 (KLR)

High Court of Kenya
14 July 2014
2,442 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court refused to strike out a stalled lawsuit, holding that a reasonable explanation for delay outweighs a defendant's bare claim of prejudice.

What this practically means

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Executive summary

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The Defendant, by a Notice of Motion dated 31st January 2013 brought under sections 1A and 1B of the Civil Procedure Act and Order 17 Rule 2 of the Civil Procedure Rules, 2010, sought to strike out the plaint filed on 2nd July 2009 for want of prosecution. The Defendant contended that the plaintiffs had taken no steps for over three years, taken no pretrial directions, and lost interest in the suit. The plaintiffs, through Mr. Jayentilal Velji Shah, explained the delay arose from changing advocates after their advocate, Okong'o Omogeni, was appointed to the Kenya Anti-Corruption Commission; their new advocates, M/S S. Musalia Mwenesi Advocates, could not process the suit until the original file was released by the previous advocates on 12th July 2012. The defendant countered that copies of pleadings would have sufficed and that the plaintiffs only complied with Order 11 after the application was filed. Relying on the principles in Allan vs Sir Alfred McAlpine and Sons Ltd and Ivita vs Kyumbu, J. M. Mutungi J framed three issues: whether there was inordinate delay, whether it was excusable, and whether the defendant was prejudiced. The court found the delay of over one year was inordinate, but accepted the plaintiffs' explanation as viable and reasonable given the file release difficulties, holding that copies of pleadings alone would not have enabled preparation under Order 11. The defendant also failed to demonstrate real prejudice. The application was disallowed; the parties were directed to comply with Order 11 within 60 days and fix the matter for a pretrial conference. The costs of the application were nonetheless awarded to the Defendant/Applicant.

Key legal issues

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01

Whether there was inordinate delay in prosecution of the suit

Holding

Yes, the period from 16th November 2011 to 31st January 2013 exceeded one year and satisfied the threshold under Order 17 Rule 2

Reasoning

Both parties agreed the last action was fixing the suit for hearing on 16th and 17th November 2011. The hearing could not proceed on scheduled dates due to non-compliance with Order 11. The period from that date until the application on 31st January 2013 was clearly more than one year, satisfying the Order 17 Rule 2 threshold for inordinate delay.

p. 4
02

Whether the delay was excusable

Holding

Yes, the plaintiffs' explanation of delay in changing advocates and the previous advocate's retention of the original file was a viable and reasonable excuse

Reasoning

The court rejected the defendant's argument that copies of pleadings would have sufficed, holding that Order 11 requires filing and exchange of documents and discovery, and the original file may have contained vital documents. The plaintiffs made concerted efforts to secure release of the file, demonstrating interest in prosecuting the suit, rendering the delay excusable.

p. 4
03

Whether the defendant demonstrated prejudice

Holding

No, the defendant did not show or demonstrate the prejudice he would suffer

Reasoning

The court held that the applicant must illustrate real prejudice, not merely assert it, and such prejudice may be in the nature of loss of a key witness or vital documents attributable to the delay. The defendant made no such demonstration, so this element of the test for dismissal for want of prosecution failed.

p. 4

Legal principles established

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  • An applicant seeking dismissal for want of prosecution must show that the delay is inordinate, inexcusable, and that the applicant stands to be prejudiced by reason of such delay
  • Even where delay is prolonged, if the court is satisfied with the plaintiff's excuse and justice can still be done, the action will not be dismissed but set down for hearing
  • An applicant must illustrate real prejudice, not merely state that he will be prejudiced
  • The discretion to dismiss a suit for want of prosecution must be exercised judicially having regard to the facts and circumstances of each case

Court orders

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  1. 1.The Defendant's application dated 31st January 2013 is disallowed
  2. 2.The parties to make full compliance with Order 11 of the Civil Procedure Rules, 2010 within the next sixty (60) days of the ruling
  3. 3.Upon compliance, the parties shall fix the matter for a pretrial conference for directions on the hearing
  4. 4.The costs of the application are awarded to the Defendant/Applicant

Authorities

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Legislation

  • Civil Procedure ActSections 1A and 1B
  • Civil Procedure Rules, 2010Order 17 Rule 2
  • Civil Procedure Rules, 2010Order 11

Cases cited (4)

  • Governors Ball Safaris Ltd –vs- Skyship Company Ltd and another (2013) e KLR
    (2013) eKLR
  • Allan –vs- Sir Afred MCAlphine and Sons Ltd (1968) IALL E.R. 543
    (1968) 1 All E.R. 543
  • Ivita –vs- Kyumbu (1984) KLR 441
    (1984) KLR 441
  • Allen –vs- Alfred MCAlpine & Sons Ltd
Jurisdiction invoked
Order 17 Rule 2 of the Civil Procedure Rules, 2010 and sections 1A and 1B of the Civil Procedure Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Richand Velji Shah & 3 others v Viktar Maina Ngunjiri [2014] KEELC 600 (KLR)", Case Analysis (2014). Not stated in the judgment text provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/600/eng@2014-07-14

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