Richand Velji Shah & 3 others v Viktar Maina Ngunjiri [2014] KEELC 600 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether there was inordinate delay in prosecution of the suit
Yes, the period from 16th November 2011 to 31st January 2013 exceeded one year and satisfied the threshold under Order 17 Rule 2
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.
Whether the delay was excusable
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
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.
Whether the defendant demonstrated prejudice
No, the defendant did not show or demonstrate the prejudice he would suffer
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.
Legal principles established
#- 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
#- 1.The Defendant's application dated 31st January 2013 is disallowed
- 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.Upon compliance, the parties shall fix the matter for a pretrial conference for directions on the hearing
- 4.The costs of the application are awarded to the Defendant/Applicant
- Jurisdiction invoked
- Order 17 Rule 2 of the Civil Procedure Rules, 2010 and sections 1A and 1B of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Appellant v Attorney General (Respondent) - Notice of Motion dated 26th October 2015[2017] KEHC 7835 (KLR)2 Feb 2017
Cite this brief
#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.