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ELCDismissedNot stated in the judgment· [2015] KEELC 803 (KLR)

Susan Atieno Ayoo & another v Natioanl Social Security Fund [2015] KEELC 803 (KLR)

Environment and Land Court
20 August 2015
757 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to dismiss a delayed land case, ruling that a well-explained delay with no prejudice to the other side warrants costs, not dismissal.

What this practically means

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Executive summary

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The National Social Security Fund, as defendant, filed a Notice of Motion dated 3/6/2014 under Order 17 rule 2, Order 50 rule 1 of the Civil Procedure Rules, 2010 and Section 3A of the Civil Procedure Act seeking dismissal of the plaintiffs' suit for want of prosecution, on the grounds that twelve months had elapsed since the matter was last listed, that the delay was inordinate, inexcusable and an abuse of process, and that the plaintiffs had lost interest. The plaintiffs, Susan Atieno Ayoo and Philip Olago, replied through their advocate, who explained that the matter had been listed twice for hearing, that the 1st plaintiff resided in Dubai, and that a breakdown in communication had hampered instructions; he acknowledged his own partial fault and urged that an advocate's mistake should not be visited on clients, with costs as adequate compensation. Both parties filed submissions, the defendant citing Ivita v Kyumbu and Rajesh Rughani v Fifty Investments Limited, and the plaintiffs citing Banco Arabe Espanol v Bank of Uganda and Philip Chemwolo v Augustine Kubede. The court held that delay per se is not fatal; only unreasonable and inexcusable delay warrants dismissal. The explanation of lost contact was accepted as reasonable, the plaintiffs were ready to proceed, and costs had not been shown to be an inadequate remedy. Dismissing the application, the court ordered the plaintiffs to pay the defendant's costs.

Key legal issues

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01

Whether the suit should be dismissed for want of prosecution

Holding

The application for dismissal was dismissed; the delay was explained and costs were an adequate remedy.

Reasoning

The court held that delay alone is not the concern; only unreasonable and inexcusable delay warrants dismissal. The communication breakdown between the plaintiffs, one of whom resided in Dubai, and their advocate was accepted as a reasonable explanation. The plaintiffs had resumed contact and were ready to proceed. Costs had not been shown to be an inadequate recompense and the defendant suffered no prejudice, so it would be unfair to shut the court doors on the plaintiffs.

p. 2
02

Whether costs are an appropriate alternative to dismissal

Holding

Yes; costs suffice as adequate compensation where no prejudice is shown.

Reasoning

Relying on the principle in Philip Chemwolo v Augustine Kubede as cited by the plaintiffs, the court held that absent fraud or intentional delay, costs should be considered as an appropriate alternative to dismissal. The defendant did not demonstrate that an award of costs could not compensate any prejudice arising from the delay.

p. 2

Legal principles established

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  • Delay per se does not warrant dismissal; only delay that is unreasonable and inexcusable does, and where delay is well explained courts are reluctant to dismiss.
  • A plaintiff should not be denied a hearing for a procedural default that caused no prejudice, and any prejudice may be compensated by costs.

Court orders

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  1. 1.The defendants' Notice of Motion dated 3/6/2014 seeking dismissal for want of prosecution is dismissed
  2. 2.The plaintiffs are ordered to pay costs to the defendant

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 17 rule 2
  • Civil Procedure Rules, 2010Order 50 rule 1
  • Civil Procedure ActSection 3A

Cases cited (4)

  • Ivita V Kyumbu
    (1984) KLR 441
  • RAJESH RUGHANI VS FIFTY INVESTMENTS LIMITED & Another
    HCC No.3038 of 1996
  • BANCO ARABE ESPANOL VS BANK OF UGANDA
    (1999) 2 EA 22
  • PHILIP CHEMWOLO & Another Vs Augustine Kubede
    (1982) KLR 1036
Jurisdiction invoked
Order 17 rule 2 and Order 50 rule 1 of the Civil Procedure Rules, 2010 and Section 3A of the Civil Procedure Act (Cap 21)

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, "Susan Atieno Ayoo & another v Natioanl Social Security Fund [2015] KEELC 803 (KLR)", Case Analysis (2015). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/803/eng@2015-08-20

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