Jacton Mukhwana v Rael Naliaka Sawenja [2017] KEELC 471 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the delay of over one year since the last step engaged Order 17 Rule 2(1) and 2(3)
Yes - the suit fell squarely within the rule as no step had been taken since 20/7/2016 when the application was filed on 28/8/2017.
The record showed the last step was the fixing of a hearing date for 20/7/2016 at the defendant's instance; nothing transpired on that date and the record did not explain it. The plaintiff did not attempt to explain what happened on 20/7/2016. More than a year elapsed before the dismissal application was filed.
Whether the plaintiff's explanation for the delay was a good reason
No - the proposed informal withdrawal was not in the prescribed form and the plaintiff's acquisition of titles removed her interest in prosecuting the suit.
The plaintiff said her advocate proposed withdrawal to allow titling of Birunda Farm occupants, and that titles had since issued to her and her sons over Plots Nos. 340, 341 and 342. The court held the prescribed Order 25 withdrawal procedure was not used, and that having secured title, the plaintiff would no longer pursue the suit with keenness, so no good reason for the delay existed.
Whether justice can still be done if the suit proceeded to hearing
No - the delay worked to the plaintiff's advantage and the defendant's detriment; the defendant would suffer greater prejudice if the suit proceeded.
During the delay the plaintiff obtained titles over the suitland and allegedly evicted the defendant, who now faces a criminal charge of malicious damage. The pleadings would need amendment to accommodate the changed circumstances. The parties were no longer on the same footing, and the greater prejudice would fall on the defendant, so the court declined to propel the suit to hearing.
Legal principles established
#- The test for dismissal for want of prosecution is whether the delay is prolonged and inexcusable and, if so, whether justice can still be done despite the delay if a hearing were ordered; both parties' interests must be considered and the defendant must show prejudice.
- Where a reason for the delay is offered, the court should be lenient and allow the plaintiff an opportunity to have the case determined on merits, but delay is decided on the circumstances of each case.
- Non-compliance with prescribed withdrawal mechanisms (Order 25) defeats an explanation for delay based on an informal proposal to withdraw a suit.
Court orders
#- 1.Allowed prayers (i) and (ii) of the defendant's application dated 28/8/2017
- 2.Dismissed the plaintiff's suit with costs for want of prosecution
- Jurisdiction invoked
- Order 17 Rules 2(1) and 2(3) of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jacton Mukhwana v Rael Naliaka Sawenja [2017] KEELC 471 (KLR)", Case Analysis (2017). Application dated 28/8/2017 in the principal suit (not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/471/eng@2017-11-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.