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ELCDismissedNot stated in judgment (ELC suit, Nanyuki)· [2021] KEELC 2415 (KLR)

Admult Collos Limited v Ndima Tea Factory Limited [2021] KEELC 2415 (KLR)

Environment and Land Court
28 July 2021
YAY. M. Angima
1,655 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to dismiss a land suit delayed for about a year because settlement talks explained the delay, but penalised the slow-moving plaintiff in costs.

What this practically means

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Executive summary

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The Defendant moved the court by notice of motion dated 9th January 2018 under Sections 1A, 1B and 3A of the Civil Procedure Act and Order 17 rule 2(3) and Order 51 rule 1 of the Civil Procedure Rules, seeking dismissal of the Plaintiff's suit for want of prosecution, contending the Plaintiff had taken no step for over a year and had lost interest. The Plaintiff opposed through a replying affidavit sworn by its director, Jackson Mahugu Mwangi, asserting the parties were engaged in settlement negotiations, that the application was premature, and that no substantial prejudice would be suffered if the suit proceeded to trial. Neither party cited authorities in oral submissions before Hon. Waithaka J. The court framed two issues: whether a case for dismissal for want of prosecution was made out, and costs. Applying the Ivita v Kyumbu test and the Utalii Transport guidance, the court held that the delay of just over one year was neither inordinate nor inexcusable, being explained by negotiations; that ADR does not license abandoning suits; and that the Defendant, whose supporting affidavit was sworn by an advocate rather than its officers, had shown no prejudice not remediable by costs. The application was disallowed. However, finding the Plaintiff not a diligent litigant, the court penalised it with thrown away costs of Kshs.25,000/= payable within 14 days, directed mutual filing of case summaries, issues and trial bundles within 14 days, and ordered that default by the Plaintiff would result in the plaint standing struck out without further order. The suit was set for mention on 27th October 2021 at Nanyuki.

Key legal issues

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01

Whether the suit should be dismissed for want of prosecution under Order 17 rule 2

Holding

Application dismissed; delay of about one year was not inordinate or inexcusable and a fair trial is still possible.

Reasoning

Applying Ivita v Kyumbu, the court found the roughly one-year delay explained by parties' settlement negotiations, which the Constitution encourages. However, ADR does not justify abandoning suits. No evidence of prejudice - the supporting affidavit was sworn by an advocate, not the Defendant's officers, and no loss of evidence or witnesses was shown. Prejudice, if any, is curable by costs.

p. 2
02

Costs of the application

Holding

Although the application failed, the Plaintiff, not being a diligent litigant, was penalised in costs.

Reasoning

Costs follow the event under Section 27 of the Civil Procedure Act, but the court retained discretion. The Plaintiff's lack of diligence in prosecuting the suit justified depriving it of costs despite the dismissal of the dismissal application, penalising it with thrown away costs of Kshs.25,000/=

p. 2

Legal principles established

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  • The test for dismissal for want of prosecution is whether the delay is prolonged and inexcusable and whether justice can still be done despite the delay.
  • A litigant pursuing alternative dispute resolution remains obliged to take steps to prosecute the suit.

Court orders

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  1. 1.The Defendant's notice of motion dated 9th January, 2018 is disallowed
  2. 2.The Plaintiff shall pay the Defendant thrown away costs of the application in the sum of Kshs.25,000/= within 14 days
  3. 3.The Plaintiff shall file and serve its case summary, issues for determination and trial bundle duly bound and paginated within 14 days
  4. 4.The Defendant shall file and serve similar documents within 14 days upon lapse of the Plaintiff's period
  5. 5.In the event of the Plaintiff defaulting in compliance with orders (b) and (c) the plaint shall stand struck out without further order
  6. 6.The suit to be mentioned on 27th October, 2021 before the Environment and Land Court at Nanyuki to confirm compliance and fix a hearing date

Authorities

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Legislation

  • Civil Procedure Act (Cap. 21)Sections 1A, 1B, 3A, 27
  • Civil Procedure Rules 2010Order 17 rule 2, Order 51 rule 1
  • Constitution of Kenyaalternative dispute resolution provisions (not specified)

Cases cited (7)

  • Ivita v Kyumbu
    [1984] KLR 441
  • Utalii Transport Company Limited and 3 Others v NIC Bank Limited and Another
    [2014] eKLR
  • Allen v Alfred McAlphine and Sons
    [1968] 1 All ER 543
  • Agip (Kenya) Limited v Highlands Tyres Limited
    [2001] KLR 630
  • Sagoo v Bhari
    [1990] KLR 459
  • NRB HC ELC Case No. 2058 of 2007
  • Hussein Janmohamed & Sons v Twentsche Overseas Trading Co. Ltd
    [1967] EA 287
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act (Cap. 21) and Order 17 rule 2(3), Order 51 rule 1 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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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Admult Collos Limited v Ndima Tea Factory Limited [2021] KEELC 2415 (KLR)", Case Analysis (2021). Not stated in judgment (ELC suit, Nanyuki). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2415/eng@2021-07-28

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