Plaintiffs v. 2nd – 14th Defendants (Dismissal for Want of Prosecution)
The bottom line
#Kenya's High Court dismissed a civil suit left dormant for over two years, confirming that plaintiffs who sleep on their cases risk losing them entirely.
What this practically means
#Executive summary
#Key legal issues
#Whether the Order 16 Rule 5 threshold of more than three months' inactivity was met.
Yes. Over two years elapsed between the suit last being in court on 23/05/2007 and the application filed on 17/08/2009, far exceeding the three-month requirement.
The court traced the history of the suit: filed on 27/10/2005 together with an injunction application; last in court on 23/05/2007 when the Plaintiffs' own injunction application was adjourned at their instance with adjournment fees ordered; and no steps taken until the Defendants' advocates invited fixing of a hearing date by letter which Plaintiffs' counsel acknowledged receiving. The hearing fixed for 30/06/2009 could not proceed because the Plaintiffs had not paid the adjournment fees. Measured against the three-month statutory threshold, more than two years had passed.
Whether the Plaintiffs adequately explained the prolonged delay.
No. The alleged conflict of interest between counsel was inadequate; even after changing advocates the Plaintiffs filed no replying affidavit or grounds of opposition and did not serve the change of advocate.
The Plaintiffs' only explanation was an apparent conflict of interest between the Defendants' counsel and their own. The court found this inadequate: even after filing a notice of change of advocate on 4/02/2010, the Plaintiffs filed neither a replying affidavit nor grounds of opposition although the application had been served on 21/10/2009, and the court had noted on 4/02/2010 that the change of advocate had not even been served on the other parties. Plaintiffs' counsel was therefore heard on points of law only.
Whether justice can be done despite the delay under the Ivita test, and whether the court should exercise its discretion to dismiss.
No. The delay was prolonged and inexcusable; the overriding consideration resolved against the Plaintiffs and the court exercised its discretion to dismiss the suit with costs.
Relying on Ivita, the court reiterated that even a prolonged delay does not attract dismissal if the excuse satisfies the court and justice can still be done, dismissal being a matter of discretion. Here, no adequate excuse was offered, so the overriding consideration — whether justice can be done despite the delay — resolved against the Plaintiffs. The court concluded that justice could not be done despite the delay and dismissed the suit, awarding the Applicants costs of both the application and the suit.
Whether the Defendants' own delay in moving for dismissal disentitles them to the order.
No. Reliance on the maxim of letting sleeping dogs lie does not bar a later application to dismiss a dormant action.
The Defendants had not moved to dismiss for some two years after the suit went dormant. Adopting the Fitzpatrick observation that defendants may reasonably refrain from applying early in the hope that a dormant action dies a natural death, the court held that the Plaintiffs' advisers should not be allowed to derive any advantage from the Defendants' forbearance, and agreed that the Plaintiffs should not be permitted to benefit from their sleepiness.
Legal principles established
#- Under Order 16 Rule 5, an applicant for dismissal for want of prosecution need only show that three months have passed since the suit was last in court.
- The test for dismissal for want of prosecution is whether the delay is prolonged and inexcusable and, if so, whether justice can be done despite the delay.
- Where the delay is prolonged and inexcusable and gravely unjust, the court may in its discretion dismiss the action; the overriding consideration is whether justice can be done despite the delay.
- Actions should be brought to trial with reasonable expedition, in the interests of defendants and, even more, of plaintiffs themselves.
Court orders
#- 1.The Applicants' Notice of Motion dated 17/08/2009 is allowed.
- 2.The Plaintiff's suit against the 2nd – 14th Defendants is dismissed for want of prosecution.
- 3.Costs of both the application and the suit are awarded to the Applicants (2nd – 14th Defendants).
- Jurisdiction invoked
- Section 3A of the Civil Procedure Act (inherent jurisdiction) and Order 16 Rule 5 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Plaintiffs v. 2nd – 14th Defendants (Dismissal for Want of Prosecution)", Case Analysis (2010). . Source:
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.