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High CourtDismissed

Plaintiff v Defendant (suit dismissed for want of prosecution application)

High Court of Kenya
18 July 2007
645 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Long delays don't automatically mean your case will be dismissed; the court must find intentional misconduct or severe prejudice.

What this practically means

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Executive summary

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The Defendant moved the High Court under Order XVI Rule 5 (a), (c) and (d) of the Civil Procedure Rules for dismissal of the Plaintiff's suit for want of prosecution. The suit arose from a cause of action of 10th March 1989, was filed on 12th February 1990, and had been in court for some 16 years with only a few hearing dates fixed. The Plaintiff opposed through a replying affidavit sworn by K.N. Muigai, explaining that hearings failed for reasons not attributable to the Plaintiff: the suit was not confirmed at call-over, was taken out of the hearing list at the Defendant's request, was removed by consent, settlement negotiations occurred, and the file went missing from the registry - facts the Defendant conceded in grounds (g) and (h). Osiemo J applied the test from Allen v Sir Alfred McAlpine & Sons Ltd (1968) 1 All ER 543, under which dismissal requires either intentional and contumelious default or inordinate and inexcusable delay creating a substantial risk of an unfair trial or serious prejudice. The court held the remedy is draconian and reserved for undeserving cases, found the record showed activity though minimal, and was not convinced the discretion should be exercised for the Defendants. The Notice of Motion dated 11th July 2006 was dismissed, costs of the application were made costs in the suit, and a hearing date was ordered to be taken in the registry on a priority basis. Judgment delivered at Nairobi on 18th July 2007.

Key legal issues

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Whether a 16-year-old suit should be dismissed for want of prosecution

Holding

The application was dismissed; the suit was not dormant and the delay was not shown to be intentional, contumelious or gravely prejudicial.

Reasoning

The court applied the Allen v Sir Alfred McAlpine test: dismissal requires either intentional and contumelious default, or inordinate and inexcusable delay giving rise to a substantial risk of an unfair trial or serious prejudice. The record showed settlement negotiations, listings, removal from the hearing list at the Defendant's request and by consent, and a missing file conceded by the Defendant. Delay existed but the discretion was not established in the Defendants' favour.

p. 1

Legal principles established

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  • Dismissal for want of prosecution is a draconian remedy to be exercised only where the delay is intentional and contumelious, or inordinate, inexcusable and likely to cause serious prejudice or an unfair trial.

Court orders

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  1. 1.The Defendants' Notice of Motion dated 11th July 2006 and filed on 8th July 2006 is dismissed.
  2. 2.Costs of the application to be costs in the suit.
  3. 3.A hearing date to be taken in the registry on priority basis.
Jurisdiction invoked
Order XVI Rule 5 (a) (c) and (d) of the Civil Procedure Rules

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, "Plaintiff v Defendant (suit dismissed for want of prosecution application)", Case Analysis (2007). . Source: 

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