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ELCAllowedNot stated in the judgment· [2016] KEELC 632 (KLR)

Chuma Fabricators Limited v Alcon Holdings Limited [2016] KEELC 632 (KLR)

High Court of Kenya
29 July 2016
MGMARY M. GITUMBI
1,413 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 dismissed a 2004 land suit because the plaintiff sat on it for two years, showing courts will not tolerate unexplained delay.

What this practically means

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Executive summary

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The Defendant/Applicant filed a Notice of Motion dated 17th September 2014 seeking dismissal of a suit, commenced by Originating Summons dated 30th September 2004 and filed on 8th October 2008, for want of prosecution, with costs. The application was supported by an affidavit of Philip Nyachoti, who recounted that the Plaintiff last fixed the matter for hearing in June 2007, that a prior dismissal application filed in 2008 was rejected by a ruling of 28th June 2013 which directed the Plaintiff to set the suit down for hearing at the earliest possible date, and that the Plaintiff had taken no step for over a year thereafter. The Plaintiff opposed the application through an affidavit of its advocate, Meshack Odero, who attributed the inaction to a missing court file which was only traced in May 2014, and asserted the Plaintiff's continued interest in land it had fully paid for. The court applied Order 17 Rules 2(1) and 2(3) and the tests in Ivita v Kyumbu and E.T. Monks & Co Ltd v Evans. Noting this was the second dismissal application, the court found the Plaintiff had taken no step for about two years since the June 2013 ruling, that the missing-file excuse was unsupported by evidence and unaccompanied by communication with the Defendant, and that the Plaintiff had lost interest. The application was allowed and the suit dismissed for want of prosecution with costs to the Defendant, judgment delivered in Nairobi on 29th July 2016.

Key legal issues

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01

Whether the suit should be dismissed for want of prosecution under Order 17 Rule 2(1) and 2(3)

Holding

The application was allowed; the Plaintiff took no step to fix the suit for hearing for about two years after a prior direction to set it down, and its excuse of a missing court file was unsupported by evidence.

Reasoning

The court applied the Ivita v Kyumbu test and the E.T. Monks principles, noting this was the second dismissal application. Having earlier excused the Plaintiff's delay, the court found that after the ruling of 28th June 2013 the Plaintiff took no step for about two years. The claim that the file was missing and that the advocate visited the registry fortnightly were unsupported by evidence, and there was no communication with the Defendant about the efforts. The court held the excuse was inadequate and that the Plaintiff had lost interest, making it unfair to keep the Defendant in limbo.

p. 3

Legal principles established

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  • The test for dismissal for want of prosecution is whether the delay is prolonged and inexcusable and whether justice can still be done despite the delay.
  • An unsupported excuse for delay, absent communication with the other party, is inadequate and may evidence loss of interest in prosecuting a suit.

Court orders

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  1. 1.The suit is dismissed for want of prosecution
  2. 2.Costs of the suit awarded to the Defendant

Authorities

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Legislation

  • Civil Procedure RulesOrder 17 Rule 2(1)
  • Civil Procedure RulesOrder 17 Rule 2(3)

Cases cited (2)

  • Ivita vs. Kyumbu
    [1984] KLR 441
  • E. T. Monks and Co Ltd v Evans
    (1985) KLR 584
Jurisdiction invoked
Original jurisdiction over a suit filed by Originating Summons dated 30th September 2004; application brought under Order 17 Rules 2(1) and 2(3) 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, "Chuma Fabricators Limited v Alcon Holdings Limited [2016] KEELC 632 (KLR)", Case Analysis (2016). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/632/eng@2016-07-29

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