Kenya Railways Corporation v Atulkumar Ramanbhai Patel [2017] KEELC 1186 (KLR)
The bottom line
#A Kenyan court gave a plaintiff who slept on its case for three years one final chance to prosecute its suit, refusing dismissal because the delay was excusable and the defendant's prejudice could be remedied.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the plaintiff has shown cause why the suit should not be dismissed for want of prosecution having taken no step since 9th July 2012
- 2.Whether the delay of about 3 years is inordinate and whether it is excusable
- 3.Whether the delay has occasioned the defendant prejudice or is likely to do so
Key legal issues
#Whether the plaintiff's delay in prosecuting the suit was excusable
The delay of about three years was inordinate but excusable on the explanation offered, including missing documents and uncooperative former-employee witnesses, though the court found the explanation weak
The court noted the file was active until 9th July 2012, after which there was a lull. The plaintiff explained that documents had disappeared and witnesses who were former employees were reluctant. The court found the explanation lacking in detail but accepted that the plaintiff had since traced and filed their documents on 1.3.2016 and complied with Order 11, warranting one last chance.
Whether the delay caused the defendant prejudice justifying dismissal
The death and untraceability of witnesses was visible prejudice but remediable, as the defendant could invoke the proviso to section 35 of the Evidence Act to produce documents whose makers cannot attend
The defendant relied on the death of a witness who signed the lease and the inability to trace another. The court held that such prejudice was not without remedy because documentary evidence could be admitted under the proviso to section 35 of the Evidence Act, and the authority relied on (Delphis Bank) was distinguishable since it concerned oral evidence, whereas here the key item was a lease document.
Legal principles established
#- Under Order 17 rule 2 of the Civil Procedure Rules, where no step has been taken by either party for one year, the Court may give notice to show cause why the suit should not be dismissed and may dismiss it if no cause is shown
- In deciding whether to dismiss a suit for want of prosecution, the court considers whether the delay is inordinate, whether it is excusable, and whether it occasions the defendant prejudice
Court orders
#- 1.The defendant's application dated 25th August 2015 to dismiss the suit for want of prosecution is declined; the plaintiff is granted one last opportunity to present its case
- 2.Costs of the application awarded to the defendant, to be agreed and/or assessed by the Deputy Registrar
- 3.The matter shall forthwith be fixed for pre-trial directions
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Sections 1A, 1B, 3A & 63(e) of the Civil Procedure Act; Order 17 rule 2, Order 40 rules 6 & 7 and Order 54 rule 2 of the Civil Procedure Rules
Relief refused
#Dismissal of the plaintiff's suit for want of prosecution
The delay was inordinate but excusable on the explanation offered, and the defendant's prejudice (death/unavailability of witnesses) was remediable under the proviso to section 35 of the Evidence Act; the plaintiff had also complied with Order 11
Costs
Costs of the application awarded to the defendant/applicant, to be agreed and or assessed by the Deputy Registrar
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In conclusion, I am satisfied that there is inordinate but excusable delay (on account of the explanation offered) by the plaintiff in prosecuting this matter.
This indeed is a visible prejudice but it is not without a remedy as the defendant can still invoke the proviso to section 35 of the Evidence Act to produce a document where it is established that procuring the attendance of the maker of such a document is impossible
On the basis that they have now complied with the provisions of Order 11 before this application was heard, I will grant them one LAST opportunity in the interest of justice to present their case.
They will not be accommodated to seek any further extensions in the guise of public interest. To compensate the defendant for waking up the plaintiff from their slumber, I shall award them costs of this application to be agreed and or assessed by the deputy registrar.
In any suit in which no application has been made or step taken by either party for one year, the Court may give notice in writing to the parties to show cause why the suit should not be dismissed, and if cause is not shown to its satisfaction, may dismiss the suit.
Issues in the judgment
#The judgment does not state the court or the suit/case number, and the title of the underlying suit is not given
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Railways Corporation v Atulkumar Ramanbhai Patel [2017] KEELC 1186 (KLR)", Case Analysis (2017). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1186/eng@2017-11-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.