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ELCDismissednot stated in the judgment (application dated 13/3/2017 in a pending suit)· [2017] KEELC 2541 (KLR)

Boniface Wekesa v David Akudukor [2017] KEELC 2541 (KLR)

Not expressly named in the judgment (delivered at Kitale)
29 May 2017
MNMwangi Njoroge
1,102 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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 for want of prosecution, arguing that the plaint was filed on 20/1/2016, that the matter was last in court on 3/3/2016, that no reply to defence had been filed, and that over a year had elapsed without any step being taken, rendering the pendency of the suit prejudicial and inimical to the fair administration of justice. The plaintiff's counsel, Majune Kraido, replied that the plaint was filed with an interlocutory application, that the defendant entered appearance on 27/5/2016 and filed defence on 6/6/2016, that the defence was served late on 7/3/2017 in breach of Order 7 Rule 1, and that one year had not lapsed since service; he suggested mischief in the application. The court found from the record that the defence was in fact filed on 6/6/2016, not 20/7/2016 as the applicant asserted, and that there was no record of its date of service. Interpreting Order 17 Rule 2 with the Interpretation and General Provisions Act (Cap 2), the court held that the 'step' contemplated includes anything done by any party, not only the plaintiff, and that keeping a suit coming up in court is not enough to sustain it. The one-year period was therefore computed from 6/6/2016, the last step taken. The application, filed on 14/3/2017, was premature and without merit. The court dismissed it and ordered the plaintiff to bear the costs of the application.

Key legal issues

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01

Computation of the one-year period for dismissal for want of prosecution

Holding

The one-year period runs from the date of the last step taken by any party, which in this case was the filing of the defence on 6/6/2016; the application filed on 14/3/2017 was premature.

Reasoning

The court held that Order 17 Rule 2 contemplates inaction by any party, not only the plaintiff. Filing and service of a memorandum of appearance and defence are steps in the prosecution of the suit. Since the defendant served his defence on 6/6/2016 and no further action followed, one year had not expired by 14/3/2017 when the application was filed. The application was therefore premature and without merit.

p. 2
02

Meaning of 'step in the matter' under Order 17 Rule 2

Holding

A step is not confined to acts by the plaintiff; acts by the defendant, such as filing and serving a defence, count, and keeping a suit 'coming up' in court alone does not sustain it.

Reasoning

The court reasoned that if only the last court appearance mattered, a claimant could indefinitely sustain a suit by having it appear in court once every 365 days. A proper interpretation of Order 17 Rule 2 takes account of any action by any party, including filing of pleadings and their service, as happened here.

p. 2

Legal principles established

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  • Under Order 17 Rule 2 the 'step' in the matter includes anything done by any party, whether plaintiff or defendant, and the one-year period runs from the last such step, not merely from the date the matter was last in court.
  • In computing time under a written law, the day on which the event happens or the act is done is excluded, per Section 57 of the Interpretation and General Provisions Act.

Court orders

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  1. 1.The application dated 13/3/2017 is dismissed for lack of merit
  2. 2.Costs of the application to 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)Sections 3 and 57
Jurisdiction invoked
Order 17 Rule 2(3) of the Civil Procedure Rules - dismissal of suit for want of prosecution

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 [2017] KEELC 2541 (KLR)", Case Analysis (2017). not stated in the judgment (application dated 13/3/2017 in a pending suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2541/eng@2017-05-29

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