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ELCDismissedNot stated in the judgment· [2015] KEELC 552 (KLR)

Jacinta Njeri Mwangi & another v Municipal Council Of Thika & another [2015] KEELC 552 (KLR)

High Court of Kenya
12 February 2015
PNP. Nyamweya
2,041 words in judgment
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The bottom line

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The High Court refused to dismiss a stalled lawsuit, ruling the delay was excusable, but gave plaintiffs six months to move it forward or lose it.

What this practically means

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Executive summary

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The 2nd Defendant moved the court by Notice of Motion dated 19th July 2011, brought under sections 1A, 1B and 3A of the Civil Procedure Act and Orders 17 and 51 of the Civil Procedure Rules, seeking dismissal of the Plaintiffs' suit for want of prosecution. It was argued that pleadings had closed, the suit had been dormant for over two years, and the Defendant would suffer prejudice and anxiety if it remained pending. The Plaintiffs opposed, explaining that the parties had pursued settlement negotiations and an independent surveyor in 2008, that their advocates changed, and that they took out hearing dates on 3rd March 2010 and 9th February 2011 which did not proceed. They relied on Article 159(1) of the Constitution and the Ivita vs Kyumbu test, contending that any delay was not of their making and that no prejudice was demonstrated. The court applied the Ivita test: whether the delay is prolonged and inexcusable and, if excusable, whether justice can still be done. Although the one-year inactivity threshold under Order 17 Rule 2 was met, the court found from the record that the Plaintiffs had taken steps to set the suit down, making the delay excusable, and that no tangible prejudice was shown; the pleaded mental anguish was a normal vagary of litigation compensable in damages. The application was accordingly dismissed, but the court, invoking sections 1A, 1B and 3A of the Act and Order 11, directed the parties to file consolidated bundles within 60 days and fixed a six-month timeline for pre-trial conference, failing which the suit would stand automatically dismissed. Costs of the motion were made costs in the cause.

Key legal issues

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01

Whether the suit should be dismissed for want of prosecution under Order 17 Rule 2 of the Civil Procedure Rules

Holding

The application was dismissed: the Plaintiffs took steps to set the suit down for hearing, the delay was excusable, and no tangible prejudice was shown

Reasoning

Order 17 Rule 2 permits dismissal where no step is taken for one year. The court record showed the last substantive step was on 16th November 2009, exceeding the one-year threshold. However, the record also revealed attempts on 3rd March 2010 and 9th February 2011 to fix hearing dates, showing diligence. Applying the Ivita vs Kyumbu test, the delay was excusable and justice could still be done since no tangible prejudice was demonstrated. The Defendants' pleaded mental anguish was a normal vagary of litigation compensable in damages. The court nonetheless imposed a timeline, failing which the suit would stand dismissed.

p. 3

Legal principles established

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  • The test for dismissal of a suit for want of prosecution is whether the delay is prolonged and inexcusable and, if excusable, whether justice can still be done despite the delay
  • Mental anguish from a suit remaining pending is a normal incidence of litigation compensable by damages, not proof of prejudice justifying dismissal

Court orders

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  1. 1.The prayers sought in the 2nd Defendant's Notice of Motion dated 19th July 2011 and filed on 21st September 2011 are denied
  2. 2.The Plaintiffs shall file a bound, consolidated, indexed and paginated bundle of the pleadings, list and bundle of documents and witness statements within 60 days of service by the 2nd Defendant of the orders
  3. 3.The Defendants shall file a bound, consolidated, indexed and paginated bundle of documents and witness statements within 60 days of service of the Plaintiffs' bundle
  4. 4.The Plaintiffs shall set the suit for pre-trial conference within 6 months of the date of the ruling; upon default the suit shall stand dismissed for want of prosecution
  5. 5.Parties shall be at liberty to apply
  6. 6.The costs of the 2nd Defendant's Notice of Motion shall be in the cause
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act and Order 17 Rule 2 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, "Jacinta Njeri Mwangi & another v Municipal Council Of Thika & another [2015] KEELC 552 (KLR)", Case Analysis (2015). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/552/eng@2015-02-12

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