Notice of Motion dated 28th May, 2019 - Defendant/Applicant v Plaintiff/Respondent (dismissal of suit for want of prosecution)
The bottom line
#A one-year delay in a lawsuit is usually not enough for a court to dismiss the case, provided the plaintiff has a strong claim.
What this practically means
#Executive summary
#Key legal issues
#Validity of the notice of preliminary objection
The preliminary objection was dismissed for vagueness as it did not specify the provisions offended
The court found the notice did not set out the provisions claimed to have been offended nor clearly show how the application was fatally defective, failing the requirement that a preliminary objection raise pure points of law without factual examination.
Whether the delay in prosecution was inordinate
The one-year delay between filing of defence and the Motion was not inordinate
The suit was filed on 8th March 2018 and defence on 17th May 2018; one year elapsed to the Motion with no directions hearing. The court accepted delay existed but found it not inordinate given its recent age.
Whether the applicant demonstrated prejudice
The applicant failed to demonstrate specific prejudice; the respondent showed it would be greatly prejudiced by losing its day in court on a colossal claim
The applicant did not expound the manner of its prejudice, failing the threshold requiring substantial prejudice such as impending fair trial, aggravated costs or specific hardships. The respondent's claim for special damages of Kshs 29,776,576 was held colossal, so dismissal would greatly prejudice it.
Legal principles established
#- A preliminary objection must raise clear points of law not requiring examination of facts
- An applicant seeking dismissal for want of prosecution must demonstrate specific, substantial prejudice
- The plaintiff bears ultimate responsibility for ensuring the progress of its suit
Court orders
#- 1.The respondent's notice of preliminary objection is dismissed with no order on costs
- 2.The defendant's Motion dated 28th May, 2019 seeking dismissal of the suit for want of prosecution is dismissed with costs abiding the outcome of the suit
- Jurisdiction invoked
- Order 17, Rule 2(1) and (3) of the Civil Procedure Rules (dismissal of suits for want of prosecution)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Notice of Motion dated 28th May, 2019 - Defendant/Applicant v Plaintiff/Respondent (dismissal of suit for want of prosecution)", Case Analysis (2020). . Source:
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.