Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCAllowed· [2016] KEELC 111 (KLR)

Samuel Gakono Ngare v Jane Wangeci Kuria [2016] KEELC 111 (KLR)

Not stated in the judgment (decided by B.N. Olao, Judge)
25 November 2016
1,314 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

#

A Kenyan court dismissed a lawsuit the plaintiff left dormant for two years, showing courts will not wait indefinitely for idle cases.

What this practically means

#

Executive summary

#
This first-instance ruling by B.N. Olao, Judge, determined the defendant/applicant's Notice of Motion dated 6th October 2016 seeking dismissal of the plaintiff's suit for want of prosecution and as an abuse of the Court process, brought under Order 17 Rule 2(3) of the Civil Procedure Rules and supported by the affidavit of Jane Wangeci Kuria. The undisputed facts were that the suit was filed on 23rd September 2014, the plaintiff took no step to prosecute it, and despite service of the application on 1st November 2016, the plaintiff filed no preliminary objection, replying affidavit or grounds of opposition as required by Order 51 Rule 14(1). Counsel for the respondent sought seven days to file a replying affidavit and argued that dismissal would deny the respondent a fair hearing, but offered no explanation for the default. The Court held that under the overriding objective (Oxygen Principle) cases should as far as possible be determined on merits, but parties must comply with rules of procedure, citing section 1A(3) of the Civil Procedure Act and the Court of Appeal decision in Hunker Trading Company Ltd v Elf Oil Kenya Ltd, which warned that improperly invoked the O2 Principle could become an unruly horse. Finding no material on which to exercise discretion in the respondent's favour, the Court allowed the application and dismissed the plaintiff's suit with costs to the defendant on 25th November 2016.

Key legal issues

#
01

Dismissal of suit for want of prosecution under Order 17 Rule 2(3) of the Civil Procedure Rules

Holding

Where a plaintiff files a suit but takes no step to prosecute it for about two years, and offers no explanation for default, the Court may dismiss the suit on a party's application.

Reasoning

The suit was filed on 23rd September 2014 and the plaintiff took no step until the defendant's application of October 2016. Despite service on 1st November 2016, the plaintiff filed no replying affidavit, preliminary objection or grounds of opposition, and counsel gave no reason for the default. With no material on which to exercise discretion in the plaintiff's favour, dismissal was warranted.

p. 3
02

Effect of failure to respond to an application under Order 51 Rule 14(1)

Holding

A respondent who wishes to oppose an application must file a preliminary objection, replying affidavit and/or grounds of opposition; failure to file any of these leaves the application unopposed.

Reasoning

The Court recited Order 51 Rule 14(1) and found the respondent had taken none of the available steps even three weeks after service. Audience was allowed only to explain the default, but no explanation was given. The unopposed application therefore fell to be allowed.

p. 2
03

The overriding objective (Oxygen Principle) and compliance with procedural rules

Holding

While courts should favour determination on merits under the overriding objective, parties must comply with rules of procedure and provide an explanation for any default before the discretion can be exercised in their favour.

Reasoning

The Court relied on section 1A(3) of the Civil Procedure Act imposing a duty on parties and advocates to assist the Court, and on Hunker Trading Co Ltd v Elf Oil Kenya Ltd, warning that improperly invoked, the O2 Principle could become an unruly horse. Rules ensure the integrity and certainty of the judicial process.

p. 3

Legal principles established

#
  • Judicial discretion must be exercised on sound grounds and not whimsically; a party seeking indulgence must provide material explaining its default.
  • Parties and advocates are under a statutory duty to assist the Court to further the overriding objective by participating in the process and complying with directions and orders.
  • The Oxygen Principle does not excuse non-compliance with rules of procedure; rules are essential to the integrity and certainty of the judicial process.

Court orders

#
  1. 1.The application dated 4th October 2016 is allowed
  2. 2.The plaintiff's suit is dismissed
  3. 3.Costs to the defendant

Authorities

#

Legislation

  • Civil Procedure RulesOrder 17 Rule 2(1), (2), (3)
  • Civil Procedure RulesOrder 51 Rule 14(1)
  • Civil Procedure ActSection 1A(3)

Cases cited (1)

  • HUNKER TRADING COMPANY LTD VS ELF OIL KENYA LIMITED
    2010 eKLR
Jurisdiction invoked
Not expressly stated; application brought under Order 17 Rule 2(3) of the Civil Procedure Rules

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Samuel Gakono Ngare v Jane Wangeci Kuria [2016] KEELC 111 (KLR)", Case Analysis (2016). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/111/eng@2016-11-25

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