Total Kenya Ltd & another v Ndito & 23 others & another
The bottom line
#Kenya's Environment and Land Court refused to dismiss a 2009 counter-claim, ruling that delays from substituting deceased parties are excusable.
What this practically means
#Executive summary
#Key legal issues
#Whether there was inactivity warranting dismissal under Order 17 rule 2(3)
No - the record shows steps taken after 16/6/2021, including a letter of 10/6/2022 seeking a mention date, a mention on 6/10/2022 and an affidavit of service filed 28/7/2022
The court examined the court record and found a letter from respondents' counsel to the Deputy Registrar asking for a mention date, a mention notice filed 28/7/2022, an affidavit of service sworn 13/7/2022, and counsel attending a mention on 6/10/2022. These demonstrated a reasonably active matter, contradicting the applicant's claim of total inaction since 16/6/2021.
Whether delay in substituting deceased parties excuses non-prosecution
Yes - substitution is a legal process in a different court whose duration cannot be predicted, so such delay is not inordinate or inexcusable
It was uncontroverted that some respondents are deceased and counsel was pursuing substitution. The court held that anyone familiar with substitution knows it takes time, occurs in a different court, and its duration is unpredictable; treating such delay as inordinate would be imprudent.
Applicable legal test for dismissal for want of prosecution
The Ivita v Kyumbu test: whether delay is prolonged and inexcusable and whether justice can be done despite the delay, guided by the overriding objective
The court adopted Chesoni J's test in Ivita v Kyumbu and the factors in Mwangi Nedangi S. Kimenyi v Attorney General (intentional/contumelious delay, abuse of court, inordinate and inexcusable delay, risk to fair trial, prejudice), all subordinated to substantive justice and the overriding objective under sections 1A and 1B of the Civil Procedure Act.
Legal principles established
#- The test for dismissal for want of prosecution is whether the delay is prolonged and inexcusable and, if so, whether justice can still be done despite the delay
- Delay occasioned by the process of substitution of deceased parties, which takes place in a different court, should not be treated as inordinate or inexcusable
Court orders
#- 1.The applicant's application for dismissal of the respondents' counter-claim dated 9/4/2009 for want of prosecution is dismissed
- 2.No order as to costs
- Jurisdiction invoked
- Order 17 rule 2(1), (2) and (3) and Order 51 rule 2 of the Civil Procedure Rules; sections 1A, 1B and 3A of the Civil Procedure Act (Cap. 21)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Total Kenya Ltd & another v Ndito & 23 others & another", Case Analysis (2023). Environment & Land Case 302 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18833/eng@2023-03-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.