Davies Wafula Nakitare & another v Agricultural Development Corporation [2017] KEELC 2579 (KLR)
The bottom line
#A Kenyan court dismissed a Kshs 93 million land damage suit because the plaintiffs let it sit inactive for nearly eight years without a credible explanation.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit should be dismissed for want of prosecution
The suit was dismissed; the inordinate delay was attributable solely to the plaintiffs, who offered no adequate explanation or assurance of diligent prosecution
The record showed that since the preliminary objection was upheld on 16/12/2009 only the defendant took any action. The delay from 2009 to 2013 predated the death of counsel J.M. Wafula, and no explanation covered 2013 to 2016 either. The plaintiffs' affidavit support was bare, counsel's oral assurances insufficient, and reinstatement would reopen 2009 pleadings eight years later, prejudicing the defendant and other litigants.
Whether the defendant's role in the delay mitigates against dismissal
No - a defendant who only defends, without a counterclaim, has no compelling interest to set the suit down, so the blame lies with the plaintiffs
The court distinguished situations where a defendant has filed a counterclaim, which is treated as a separate suit and would oblige both parties to prosecute. Here the defendant sought nothing by counterclaim, so only desired to avoid unjust orders and could not be faulted for not setting the matter down for hearing.
Adequacy of the plaintiffs' explanation for the delay
The sole ground urged - the demise of former counsel in 2013 - could not explain the delay between 2009 and 2013, nor between 2013 and 2016
Counsel for the plaintiffs relied only on the death of J.M. Wafula in 2013. The court found the explanation insufficient both because the delay predated and postdated that event without explanation, and because counsel had not even perused the record adequately, missing the earlier preliminary objection rulings and the related Kitale HCCC No. 73 of 2007.
Legal principles established
#- It is in the public interest that litigation must have an end (interest reipublicae ut sit litium finis)
- Where a defendant has no counterclaim, blame for failure to set the suit down lies principally with the plaintiff; a counterclaim would place both parties under a duty to prosecute
- Oral assurance from counsel at the bar is not sufficient security that delay will not recur; the explanation must come from the litigants themselves
Court orders
#- 1.The plaintiffs' suit is dismissed with costs for want of prosecution
- Jurisdiction invoked
- Inherent discretion of the court over suits listed for dismissal for want of prosecution, following consent orders recorded on 23/2/2017 that the ex parte dismissal of 15/8/2016 be set aside and the plaintiffs show cause why the suit should not be dismissed
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Davies Wafula Nakitare & another v Agricultural Development Corporation [2017] KEELC 2579 (KLR)", Case Analysis (2017). Not stated in the judgment (related suit: Kitale High Court Civil Case No. 73 of 2007 - Captain Davies Nakitale -vs- Agricultural Development Corporation). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2579/eng@2017-03-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.