Automated Summary
Key Facts
The case Patrice Kipkemei Chepkwony v National Bank of Kenya Limited (2016) involves a suit filed on 1998-04-24 seeking reinstatement after dismissal on 2015-04-08 for want of prosecution. The plaintiff's counsel, Mr. Ngige Mbugua, attended the dismissal hearing and actively urged the court to dismiss the case. The suit, a commercial claim over a charge debt with a counterclaim of Kshs 5,802,014.95 by the bank, had been dormant since 2013-05-08. Both parties failed to prosecute the matter or counterclaim for extended periods. The court ruled the plaintiff's delay inexcusable and dismissed the motion to resuscitate the suit on 2016-06-16, citing unexplained inactivity and prejudice to both parties.
Transaction Type
Loan/Credit Facility dispute over a charge debt
Issues
The court considered whether the plaintiff's application to resuscitate a 17-year-old civil suit dismissed for want of prosecution should be granted. The suit was dismissed on 8th April 2015 after no steps were taken for nearly two years, with the plaintiff's own counsel urging dismissal. The court found the delay inexcusable, noting both parties neglected their claims, including the defendant's counterclaim of Kshs 5,802,014.95. The judge emphasized that the court's inherent power to dismiss dormant suits was properly exercised here.
Holdings
The court dismissed the plaintiff's motion to reinstate the suit, finding that the inordinate delay in prosecution was inexcusable and attributable to the plaintiff. The plaintiff's counsel had previously admitted to the delay and urged the court to dismiss the suit in 2015, and the court determined that the delay could not be attributed to inadvertence or excusable error. The defendant's counterclaim was also neglected, and resuscitating the suit would offend the court's overriding objective of doing justice. The motion for reinstatement was devoid of merit and dismissed accordingly.
Remedies
- The court dismissed the plaintiff's motion to resuscitate the suit and ordered each party to bear their own costs.
- Each party shall bear its own costs.
Legal Principles
The court applied principles of judicial discretion to dismiss a dormant suit for want of prosecution under Order 17 of the Civil Procedure Rules, citing cases like Shah v Mbogo [1967] E.A 116 and Ivita v Kyumbu [1984] KLR 441. It emphasized that inexcusable delay by either party warrants dismissal to avoid obstructing justice, and that courts have inherent power to strike out cases that have languished without progress.
Precedent Name
- Mbogo and another v Shah
- Patel v East African Cargo Handling Services
- Fitzpatrick v Batger & Co. Ltd
- Ivita v Kyumbu
- Mukisa Biscuit Manufacturing Company v West End Distributors Ltd
- Shah v Mbogo (No. 1)
- Kimani v Mc Connell
- Magunga General Stores v Pepco Distributors Limited
Cited Statute
Civil Procedure Rules 2010
Judge Name
George Kanyi Kimondo
Passage Text
- It is the duty of the plaintiff's advisers to get on with the case. Public policy demands that the business of the courts should be conducted with expedition... This action has gone to sleep for nearly two years. It should now be dismissed for want of prosecution.
- The delays in this case are too lengthy. They are not well explained or at all. The delays cannot be attributed to inadvertence, excusable mistake or error.
- The court acted judiciously in dismissing the entire suit. The portrait of lethargic and disinterested litigants emerges.
Damages / Relief Type
Motion to reinstate suit dismissed; no damages awarded as the case was dismissed for want of prosecution.