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ELCDismissedApplication dated 13/3/2017 (suit number not stated)· [2017] KEELC 2484 (KLR)

Boniface Wekesa v David Akudukor (Land Case 20 of 2016) [2017] KEELC 2484 (KLR)

High Court of Kenya
29 May 2017
MNMwangi Njoroge
1,101 words in judgment
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The bottom line

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The High Court in Kitale ruled you cannot dismiss a case for delay until a full year has passed since any party's last formal step in the suit.

What this practically means

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Executive summary

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By an application dated 13/3/2017, the defendant sought dismissal of the plaintiff's suit (plaint filed 20/1/2016) for want of prosecution, arguing that over a year had passed without any step being taken and that the pendency of the suit prejudiced him and undermined the fair administration of justice. The plaintiff's advocate, in a replying affidavit, opposed the application, noting among other things that the defendant had filed and served his defence and that a year had not lapsed since service. The court undertook its own examination of the record and found the defence was filed on 6th June 2016, not 20th July 2016 as the applicant claimed. The court held that the one-year period under Order 17 Rule 2 of the Civil Procedure Rules is computed from the last step taken by any party - whether plaintiff or defendant - and that merely having the matter come up in court is not the only measure of prosecution of a suit. Applying Section 57 of the Interpretation and General Provisions Act (Cap 2) on the computation of time, the court found the last step was the service of the defence on 6/6/2016. The application, filed on 14/3/2017, was therefore premature, having been brought before the expiry of one year. The court dismissed the application with costs to the plaintiff, ordering that the costs of the application be borne by the plaintiff.

Key legal issues

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01

Computation of the one-year period for dismissal for want of prosecution under Order 17 Rule 2

Holding

The period runs from the last step taken by any party, including the defendant's filing and service of the defence; the application filed 14/3/2017 was premature.

Reasoning

The court held that computing the one-year period only from the date the matter was last in court would be an improper reading of Order 17 Rule 2, since it would allow a claimant to keep a suit alive simply by having it come up in court periodically. Filing and service of the memorandum of appearance and defence are steps in the prosecution of the suit. Applying Section 57 of the Interpretation and General Provisions Act, the last step was service of the defence on 6/6/2016, and the application of 14/3/2017 fell within one year of that date.

p. 2

Legal principles established

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  • The one-year delay under Order 17 Rule 2 is computed from the date of the last step taken by any party, whether plaintiff or defendant, not merely from the date the matter was last in court
  • A 'step' in the suit under Order 17 Rule 2(1) includes anything done by the defendant, not only by the plaintiff

Court orders

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  1. 1.The application dated 13/3/2017 is dismissed
  2. 2.The costs of the application shall be borne by the plaintiff

Authorities

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Legislation

  • Civil Procedure RulesOrder 17 Rule 2(1), 2(3)
  • Civil Procedure RulesOrder 7 Rule 1
  • Civil Procedure RulesOrder 50
  • Interpretation and General Provisions Act (Cap 2)Section 3; Section 57(a)
Jurisdiction invoked
Order 17 Rule 2(3) of the Civil Procedure Rules, 2010

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, "Boniface Wekesa v David Akudukor (Land Case 20 of 2016) [2017] KEELC 2484 (KLR)", Case Analysis (2017). Application dated 13/3/2017 (suit number not stated). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2484/eng@2017-05-29

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