Charterhouse Bank Limited & 1 other v Nation Media Group & 1 other
The bottom line
#Kenya's Court of Appeal dismissed Charterhouse Bank's 13-year-old defamation appeal, ruling that vague settlement talks never excuse years of inaction in prosecuting a case.
What this practically means
#Executive summary
#Key legal issues
#Whether ongoing out-of-court settlement negotiations justify a prolonged failure to prosecute a suit
Mere proposal of settlement, without evidence of active negotiations, does not excuse inordinate delay; a single unanswered letter over seven years cannot sustain such an excuse.
The court examined the only documentary evidence of negotiations: a letter dated 11th May 2006 proposing settlement which the respondents never answered. The respondents' non-response was itself sufficient notice that they were not keen on settlement. The circumstances did not reflect parties in a state of negotiations, rendering the excuse incredible and the delay inordinate and inexcusable.
Whether statutory management of a corporate plaintiff constitutes a disability preventing time from running against it
Statutory management did not disable the bank from litigating; it was ably represented by advocates who prosecuted the dismissal application and this appeal, and the disability could not apply to the second appellant in any event.
The court noted the bank's advocates never deposed to difficulties obtaining instructions, and the bank managed to oppose the dismissal application and file the appeal, actions inconsistent with the claimed incapacity. The ground was raised only in written submissions and was never the fulcrum of the appellants' response to the dismissal application.
Whether the respondent bore any duty to set the suit down for hearing or suffered no prejudice from the delay
The duty to prosecute rests on the plaintiff alone, and the respondents' evidence of prejudice to witnesses' availability and memory after 13 years was well-founded and uncontroverted.
Relying on Nilani v Patel, the court held the plaintiff pursuing a remedy must take all necessary steps for expeditious determination. The respondents explained that reporters and writers had a high turnover and memories fade, making a fair trial after 13 years almost impossible. The appellants did not controvert these arguments, and the High Court judge's discretion was properly exercised.
Legal principles established
#- Until a credible excuse is made out, the natural inference is that a delay in prosecuting a suit is inexcusable.
- The duty to prosecute a suit lies with the plaintiff; a defendant is not obliged to set the suit down for hearing, and unexplained delay attracts dismissal for want of prosecution.
Court orders
#- 1.Appeal dismissed
- 2.The respondents shall have the costs of the appeal
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No. 1238 of 2004
- Jurisdiction invoked
- First appellate jurisdiction over an interlocutory appeal from the High Court (Court of Appeal, Civil Appeal No. 7 of 2013)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Joo v Mbo[2020] KECA 588 (KLR)19 Jun 2020
Cite this brief
#Cite this brief
Caselaw, "Charterhouse Bank Limited & 1 other v Nation Media Group & 1 other", Case Analysis (2019). Civil Appeal No. 7 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/969/eng@2019-02-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.