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ELCDismissed· [2016] KEELC 1091 (KLR)

Sukhdev Singh Laly v Janet Leeland & another [2016] KEELC 1091 (KLR)

High Court of Kenya
26 January 2016
PNP.M. Njoroge
466 words in judgment
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The bottom line

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A Kenyan High Court dismissed a lawsuit because neither party showed up for a hearing they'd known about for eight months — even though both lawyers were present.

What this practically means

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Executive summary

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This first-instance decision concerns the dismissal of a suit for want of prosecution, effectively for non-attendance. At a pre-trial conference on 25 May 2015 the parties were directed to comply with Orders 3, 7 and 11 of the Civil Procedure Rules within sixty days, and hearing was fixed for 21 January 2016. On the hearing date, counsel for the Plaintiff, Mr Kimani, reported that he had lost contact with his client and sought an adjournment as he had no witnesses. Counsel holding brief for the Defendants likewise reported being unable to contact his clients and also sought an adjournment. The court noted that the hearing date had been fixed on 26 May 2015, nearly eight months earlier, so the parties had adequate time to prepare. To confirm counsel's statements, the court clerk called out the parties' names outside court, but neither party was present. Guided by Order 12 Rule 1, which permits dismissal where neither party attends on the hearing date, the court held that although the discretion to dismiss must be exercised proportionately and judiciously, the parties had not demonstrated why the suit should not be dismissed. The court observed that advocates, though present, are not the 'parties' contemplated by the rule. It also commented that parties, rather than courts, are often responsible for delays, debunking public perceptions that courts are the natural authors of delay. The suit was dismissed with no award as to costs. This is a useful authority on non-attendance dismissals and judicial case management.

Key legal issues

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01

Dismissal of suit for non-attendance of both parties

Holding

The suit was dismissed as neither party attended and neither demonstrated why it should not be dismissed.

Reasoning

The hearing date had been fixed nearly eight months earlier, giving both sides adequate preparation time. On the hearing date, both advocates reported losing contact with their clients and had no witnesses, and sought adjournments. A court clerk called the parties' names outside court but neither was present. Counsel, though present, are not the parties contemplated by Order 12 Rule 1, and the dismissal power is discretionary but must be exercised judiciously.

p. 2
02

Responsibility for delay in hearing of suits

Holding

Parties, not courts, are often to blame for delays; the perception that courts are responsible is not always accurate.

Reasoning

The court observed that the public perceives courts as the cause of delays, but this case demonstrated that parties who fail to attend or prepare cause the delay. Both parties were uninterested in expeditious disposal despite adequate notice of the hearing date.

p. 2

Legal principles established

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  • Where neither party attends on the day fixed for hearing, the court may dismiss the suit under Order 12 Rule 1, but the discretion must be exercised proportionately and judiciously.

Court orders

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  1. 1.The suit is dismissed
  2. 2.No award made in respect of costs (each party to bear their own costs)

Authorities

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Legislation

  • Civil Procedure RulesOrder 3, 7 and 11
  • Civil Procedure RulesOrder 12 Rule 1
Jurisdiction invoked
Order 12 Rule 1 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, "Sukhdev Singh Laly v Janet Leeland & another [2016] KEELC 1091 (KLR)", Case Analysis (2016). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/1091/eng@2016-01-26

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