Henkel Polymer Company Limited v Kenya Railways Corporation Limited
The bottom line
#Kenya's Environment and Land Court dismissed a land dispute because the company suing waited too long to move the case forward.
What this practically means
#Executive summary
#Key legal issues
#Whether the delay in prosecuting the suit exceeded the one-year threshold under Order 17 Rule 2(1)
Yes - the matter was last in court in August 2019 and the plaintiff took no tangible steps thereafter, exceeding the one-year threshold
The court noted the suit was filed on 13 September 2017 and last in court in August 2019. The plaintiff admitted delay, attributing it to a former agent, David Cattermore, who allegedly acted in bad faith and left employment, and to ongoing out-of-court negotiations. The court found these reasons unsubstantive and held the delay inordinate, unreasonable and inexcusable.
Whether the defendant proved prejudice warranting dismissal
The court found the plaintiff's inaction caused the defendant agony, anguish and frustrations, and dismissed the suit
Although the plaintiff argued the defendant had filed no defence, witness statements or list of witnesses and thus proved no prejudice, the court was satisfied the prolonged inaction caused the defendant frustration and uncertainty. It held the application must succeed and the suit be considered for dismissal for want of prosecution.
Who should bear the costs of the application
Costs follow the event under Section 27(1) of the Civil Procedure Act; the successful defendant is entitled to costs of both the application and the suit
The court applied Section 27(1) of the Civil Procedure Act, holding that costs follow the event, meaning the result or outcome of the proceedings. Since the defendant's application succeeded, the plaintiff was ordered to bear the costs of both the application and the suit.
Legal principles established
#- A party seeking dismissal for want of prosecution must show the delay is inordinate, inexcusable and that it is prejudiced; the discretion must be exercised judicially
- Blaming a former agent or advocate without more does not excuse a litigant's prolonged inaction in prosecuting its suit
Court orders
#- 1.The Notice of Motion application dated July 2, 2021 by the Defendant/Applicant is allowed with costs in its entirety
- 2.The suit instituted by the Plaintiff is dismissed for want of prosecution and the court file marked as closed
- 3.Costs of the Notice of Motion application and the suit to be borne by the Plaintiff/Respondent
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court; application under Sections 1A, 1B(1), 3A and 63(e) of the Civil Procedure Act, Order 17 Rule 2(1) & (3) and Order 51 Rule 1 of the Civil Procedure Rules, 2010 and Article 159(2)(b) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Henkel Polymer Company Limited v Kenya Railways Corporation Limited", Case Analysis (2022). Environment & Land Case 329 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/15454/eng@2022-12-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.