Automated Summary
Key Facts
Surgipharm Limited filed a civil suit in October 2001 against Isaac Awuondo and Liza Kimbo. Both defendants applied for dismissal due to the plaintiff's four-year inaction (2011-2015). The plaintiff admitted the delay, attributing it to the death of their credit controller (2007), departure of another officer (2010), and a misplaced file during office relocation (2012). The court acknowledged the inordinate delay but declined dismissal, finding justice could still be administered. The plaintiff was ordered to finalize pre-trial procedures within 45 days.
Issues
- The court considered whether the plaintiff's inordinate delay of four years in prosecuting the case, as per Order 17 Rules 2 and 3 of the Civil Procedure Rules, constituted an inexcusable delay that would justify dismissal, despite the plaintiff's explanation involving staff changes and misplaced files.
- The court examined the interpretation of the Guarantee instrument, determining if it was for a limited sum and whether it had lapsed, as this is central to the plaintiff's claim and the parties' conflicting understandings.
Holdings
- The court declined the defendants' request to dismiss the suit for want of prosecution, finding that despite the plaintiff's inordinate delay of four years, justice can still be administered as the case is based on a Guarantee document. The court emphasized that the case hinges on interpreting the Guarantee, requiring minimal witness testimony, and concluded that the delay did not cause irredeemable prejudice.
- The plaintiff was directed to finalize all pre-trial procedures within 45 days to set the case for trial without further delay. Failure to comply would be deemed a conscious decision to forgo calling witnesses or producing documentary evidence.
- The costs of the application were ordered to be borne by each party. While the plaintiff successfully resisted the dismissal, the court noted its blameworthy delay and ruled against awarding costs in its favor, stating the plaintiff should be grateful to the defendants for prompting action.
Remedies
- The court ruled that the suit would not be dismissed for want of prosecution, allowing it to proceed to trial.
- The plaintiff was directed to complete all pre-trial procedures within 45 days to set the case for trial without further delay.
- The court ordered that the costs of the application be shared equally between the plaintiff and the defendants.
Legal Principles
The court applied the legal principle that justice must be administered expeditiously under Kenya's Constitution (Article 159(2)(b)), and enforced the Civil Procedure Rules (Order 17 Rules 2 and 3) regarding dismissal of cases for want of prosecution. The ruling emphasized that inordinate delay by a plaintiff can lead to dismissal unless the delay is excusable and does not cause irredeemable prejudice to the defendant.
Precedent Name
- Ivita v Kyumbu
- Allen v Sir Alfred Macalpine
- Fitzpatrick v Batger & Co. Ltd.
Cited Statute
- Constitution of the Republic of Kenya
- Civil Procedure Rules
Judge Name
FRED A. OCHIENG
Passage Text
- "The period of 4 years cannot be described as anything but inordinate."
- "It is the duty of the plaintiff's adviser to get on with the case. Public policy demands that the business of the courts should be conducted with expedition"
- "I therefore decline the defendants' request to dismiss the suit."