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MagistrateAllowedCivil Suit No 2148 of 2019· [2023] KEMC 124 (KLR)

Alpine Coolers Limited v East African Portland Cement Company Limited (Civil Suit 2148 of 2019) [2023] KEMC 124 (KLR)

Magistrates' Court
16 May 2023
JAJeal Praxades Atieno Aduke
505 words in judgment
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The bottom line

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What this practically means

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Executive summary

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The Applicant moved the court by Notice of Motion dated 27th June 2022 seeking dismissal of the suit for want of prosecution and costs, supported by the affidavit of Simon Peter. The application was served on the Plaintiff, who filed a response, and the court had the benefit of submissions from both sides. The suit had been instituted on 2nd April 2019; after a ruling by Hon Lewa on 31st October 2019, the file lay dormant until the present application came up for directions on 21st September 2022. The court invoked Order 17 rules 2 and 3 of the Civil Procedure Rules, which empower a party to apply for dismissal where no step has been taken for one year, and applied the principles in Ecobank Ghana Limited v Triton Petroleum Co Ltd and others: whether the delay is inordinate and prolonged, whether it is explained, and whether the applicant is prejudiced. Holding the file dormant for more than two years, the court found the delay prolonged, the Plaintiff's explanation insufficient - noting that courts operated even during the pandemic - and concluded that the Plaintiff was not desirous of prosecuting the suit to conclusion. The application was allowed, the suit dismissed for want of prosecution, costs awarded to the Applicant and the file closed. The ruling was signed and delivered on 16th May 2023 by Senior Resident Magistrate Jeal Praxades Atieno Aduke.

Key legal issues

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01

Whether the suit should be dismissed for want of prosecution under Order 17 rules 2 and 3 of the Civil Procedure Rules

Holding

The application for dismissal was merited; the delay of over two years was prolonged and inexcusable and the plaintiff was not desirous of prosecuting the suit.

Reasoning

The court applied Order 17 rules 2 and 3 CPR, which permit dismissal where no step has been taken for one year. It adopted the Ecobank Ghana Ltd v Triton Petroleum principles: inordinate and prolonged delay, explanation for the delay, and prejudice. The file had been dormant since 31st October 2019, the plaintiff's explanation (including the pandemic) was found insufficient since courts operated, and the record showed the plaintiff had no desire to prosecute the suit.

p. 2

Legal principles established

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  • Courts may dismiss a suit where no step has been taken for one year and the delay is unexplained; litigation must come to an end.

Court orders

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  1. 1.The Notice of Motion application dated 27th June 2022 seeking dismissal of the suit for want of prosecution is allowed
  2. 2.The suit is dismissed for want of prosecution
  3. 3.Costs to the Applicant
  4. 4.File closed

Authorities

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Legislation

  • Civil Procedure RulesOrder 17 rules 2 and 3

Cases cited (1)

  • Ecobank Ghana Limited vs Triton Petroleum Co Ltd and others
    eKLR [2018]
Jurisdiction invoked
Order 17 rules 2 and 3 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, "Alpine Coolers Limited v East African Portland Cement Company Limited (Civil Suit 2148 of 2019) [2023] KEMC 124 (KLR)", Case Analysis (2023). Civil Suit No 2148 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2023/124/eng@2023-05-16

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