The law on hunting the hunter: Dismissal for want of prosecution

Sometimes the Plaintiff's side sleeps on the job and forgets prosecute the case for unjustified time. In such instances, it may be time to hunt the hunter. In other words, such delay may be the perfect opportunity for the Defence to turn the tables on the Plaintiff's side and put it on the defensive. If lucky, the defence may get away with dismissal of an otherwise meritorious case.

Failure to prosecute may be inadvertent or part of Plaintiff side's grand strategy. Usually, delay is very agreeable to Plaintiff's side when the status quo is already maintained in its favour. This happens, for instance, when the subject matter is preserved via an order in their favour and the prospects of winning the case are bleak. A real life example is in lease cases when the landlord has been prohibited from evicting the tenant but the tenant has no prospect of success in the case. Delaying the matter would be very appealing to such a tenant.

When such delay games are put up, the Defence counsel often times watch the client, the Defendant, get restless and frustrated with the justice system. In the extreme cases, the client decides a change of advocates is what the impasse needs and fires the counsel on record. Occasionally, the client requests opinion on the repercussions of taking law in his hands and damning the Plaintiff.

However, before your client dismisses you as not offering much help and resorts to self-help, much to your chagrin, you can check whether dismissal for want of prosecution can help. This article looks at the law on dismissal for want of prosecution in Kenya.

At the onset, it is important to observe that dismissal for want of prosecution is not a panacea to intentional delays, and is not often granted. However, dismissal for want of prosecution is meant to and helps stem injustice caused defendants as a result of delays in prosecuting cases. At least, if dismissal fails, the Plaintiff's side is definitely nudged to take a hearing date.

The legal basis for dismissal for want of prosecution

In Kenya, dismissal for want of prosecution and generally regulations on prosecution of suits and adjournments is provided for under Order XVI of the Civil Procedure Rules. The basis for the provisions of the Order in the substantive law appear to be sections 3A and 63(e) of the Civil Procedure Act.

In deed, the roots basis for the requirement of expediency of prosecution of civil suits is section 77(9) of the constitution. It is to the effect that '[civil] cases shall be given a fair hearing within a reasonable time' (Emphasis mine)

Section 3A of CPA gives court unlimited power and preserves its inherent power to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of court. On its part, section 63 of CPA which is the statutory basis of all interlocutory applications gives courts the discretion, where it is so prescribed, in order to salvage justice from defeat to make such interlocutory orders, inter alia, as appear to the court to be just and convenient. (Emphasis supplied)

Finally, Order XVI of the civil procedure rules is the repository of the operative law on applications and conditions for applications for dismissal for want of prosecution. The Order states in Rule 5:

"If within three months after-

1. the close of pleadings;or

2. deleted by L.N 36/2000

3. the removal of the suit from hearing list; or

4. adjournment of the suit generally.

the plaintiff, or the court of its own motion on notice to the parties, does not set down the suit for hearing, the defendant(s) may either set the suit down for hearing or apply for its dismissal.

The order does not stipulate the manner of making applications and therefore Order L rule 1 is applicable in this respect and the application is supposed to be by way of notice of motion. Order L Rule 3 provides that 'every motion shall state in general terms the grounds of the application and where the motion is grounded on evidence by affidavit, a copy of any affidavit intended to be used shall be served.

Courts take on dismissal for want of prosecution

The courts have variously been called to interpret and apply the law on application for dismissal for want prosecution. It does not seem far fetched to state that the law on same is well settled.

The case of ET Monks & Co. Ltd-v-Evans (1985) 584 established the public policy interest in demands that the business of the Court be conducted with expedition. In Agip (Kenya) Limited-v-Highlands Tyres Limited [2001] KLR 630, Visram J considered and articulated the flip side of the issue. The judge stated

"It is clear that the process of the judicial system requires that all parties before the court should be given an opportunity to present their cases before a decision is given. It is, therefore, not possible that the Rules Committee intended to leave the Plaintiff without a remedy and to take away the authority of the court when it made order XVI rule 5 of Civil Procedure Rules."

In the case of Naftali Opondo Onyango versus National Bank of Kenya [2005] eKLR, the court reiterated the burden of proof that a Defendant seeking a dismissal for want of prosecution must meet. Quoting Salmon, L.J. in Allan-v-Sir Alfred McAlphine and Sons Ltd (1968) 1 ALL E.R. 543, F. Azangalala, J stated that:

"The Defendant must show:

1. That there has been inordinate delay… What is or is not inordinate delay must depend on the facts of each particular case. These vary infinitely from case to case but it should not be too difficult to recognize inordinate delay when it occurs.

2. That this inordinate delay is inexcusable. As a rule until a credible excuse is made out the natural inference would be that it is inexcusable.

3. That the Defendants are likely to be seriously prejudiced by the delay. This may prejudice at the trial of issues between themselves and the Plaintiff or between each other or between themselves and third parties. In addition to any inference that may properly be drawn from the delay itself, prejudice can sometimes be directly proved. As a rule the longer the delay the greater the likelihood of prejudice at trial."

The Court of Appeal in the case of Salkas Contractors Ltd-v-Kenya Petroleum Refineries: Mombassa C.A No. 250 of 2003 (UR) stated that the above principles apply in Kenya and had been consistently followed by Kenyan courts. For instance, Chesoni J, as he then was, applied the principles in the case of Ivita-v-Kyumbu (1984) KLR 441 when he observed that:-

"The test applied by the Courts in an application for dismissal of a suit for want of prosecution is whether the delay is prolonged and inexcusable, and if it is whether justice can be done despite the delay. Thus, even if the delay is prolonged if the Court is satisfied with the Plaintiff's excuse for the delay and that justice can still be done to the parties, the action will not be dismissed but it will be ordered that it be set down for hearing at the earliest time. It is a matter in the discretion of the Court."

Courts reluctant to dismiss for want of prosecution!

In deciding whether to dismiss a suit for want of prosecution, it seems that a court will be slow to make an order if it is satisfied that the hearing of the suit can proceed without further delay, that the Defendant will suffer no hardship and that there has been no flagrant and culpable inactivity on the part of the Plaintiff. In the Naftali case (supra), the judge said as much and proceeded to consider the fact that the Plaintiff had shown that he had instructed his lawyers to urgently fix the suit for hearing on merit. The court, as a result, concluded that the Plaintiff had not lost interest in the case and that the suit could then be prosecuted expeditiously. The court thus declined to grant the orders for dismissal.

In the Agip (Kenya) Ltd case (supra), Visram J succinctly summarized the law on dismissal for want of prosecution thus:

"The Principles governing application for want of prosecution that must be shown are that:

1. the delay is inordinate

2. the inordinate delay is inexcusable; or

3. the Defendant is likely to be prejudiced by the delay."

On delay, the judge was clear:

"Delay is a matter of fact to be decided on the circumstances of each case. Where a reason for the delay is offered, the court should be lenient and allow the Plaintiff an opportunity to have his case determined on merit. The court must also consider whether the Defendant has been prejudiced by the delay."

In that case, there was a delay of 8 months. The Plaintiff's counsel explained that by stating that it was due to relocation of its offices that the delay in prosecuting the case arose and stated that they were willing to take an early hearing date. The court found the explanation satisfactory and further thought that 8 months was not inordinate in the circumstances of the case. The court also considered generally the conduct of the Plaintiff in the case and particularly its vigilance and spirited effort in defending the present application for dismissal and arrived to the conclusion that the Plaintiff was not indolent as alleged.

The court also considered the matter of prejudice. The counsel for the Defendant in the case had suggested that the amount claimed in the suit was irrelevant. The court did not, however, agree with him. It considered that the claim of the Plaintiff was for a substantial amount of money namely Kshs 50 Million. The court thus concluded that given the amount, the claim was not a simple amount to be taken lightly. The judge was of the view that the court would not be up to its duty if it were to drive the Plaintiff's claim out of the seat of justice because of the 8 Month's delay. He reminded himself of the familiar plea to courts that they participate in sustaining suits rather than throwing them out on minor procedural defects.

Finally, in the case of Esther Chemeli Keter-v-Charles Kirui & 3 others [2005] eKLR the delay had been well over 7 months. The court confronted with the question whether the plaintiff's suit therein ought to be dismissed for failure to prosecute for the aforestated period found in the negative. While conceding Plaintiff's indolence in not attempting to fix the case for hearing, it considered the fact that the matter in dispute between the Plaintiff and the 3^rd Defendant therein (the applicant for dismissal) could not be separated with the matters in issue between the Plaintiff and the other three Defendants. The court stating that the mattes in issue were intertwined and therefore inseparable concluded that if the court were to strike the Plaintiff's suit against the 3^rd Defendant alone, it would fatally compromise the Plaintiff's suit as against the other Defendants. It therefore declined to give the order for dismissal in 'the interest of justice' stating that it could have been a different scenario had all the defendants applied.

Caution when applying for dismissal for want of prosecution

Prudence is useful in deciding whether or not to apply for dismissal for want of prosecution. Given that it is not given that one will to gets the dismissal, it is important that one tread with caution. The good thing is that costs are rarely awarded even if the application does not sail through. The Plaintiff's side is usually very willing to consent to a withdrawal. But under no circumstances should the defence counsel swear the affidavit in support of this application. If that be the case, almost always, the Plaintiff's side issues a notice to cross examine the counsel and that definitely punctures the application.

If you are opposing a dismissal for want of prosecution where there is an inordinate delay, the way to go is mainly to look for preliminary objections that are fatal to the application. If you have those, a reasonable defence side should consent to shelving the application and taking a hearing. Failing a good, try a good response and bask in the fact that courts always encourage conclusion of trial and equally abhor dismissals.

Conclusion

Needless to say, dismissals for want of prosecution are granted mainly in exceptional cases where there has been inordinate and unexplained delay on the part of the Plaintiff's side. But there is no harm in jolting the Plaintiff(s) into action. Even if the matter is not dismissed, a order as to taking of new dates or a rush by the Plaintiff's side to invite for taking dates is guaranteed. But while at it, caution demands that you avoid common place mistakes like counsel swearing controversial matters or filling a defective affidavit.