Pkiech Chesimaya v Limakorwai Achipa [2020] KECA 827 (KLR)
The bottom line
#Kenya's Court of Appeal reinstated a decade-old land suit, confirming that dismissal for delay requires proof a fair trial is no longer possible.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the learned Judge properly exercised his discretion in dismissing the appellant's suit for want of prosecution
- 2.Whether the delay in prosecuting the suit was inordinate and inexcusable, and whether sufficient cause was shown
- 3.Whether the respondent demonstrated prejudice such that a fair trial was no longer possible despite the delay
- 4.Whether the learned Judge erred in taking into account the appellant's previous conduct and the alleged 'backdoor' challenge to the Tribunal's award
Key legal issues
#Test for dismissal of suit for want of prosecution
The court must consider whether the delay is inordinate, whether it is excused, and whether either party is prejudiced such that a fair trial is no longer possible; if justice can still be done, dismissal should be refused.
The Court adopted the Ivita test and subsequent restatements: where the delay is prolonged and inexcusable, the applicant must still show that justice cannot be done despite the delay. Justice is owed to both parties, and the risk to evidence and human memory must be considered. The trial court dismissed the suit on delay alone without asking whether a fair trial remained possible.
Burden of proving prejudice on an application to dismiss for want of prosecution
The party seeking dismissal bears the burden of demonstrating the prejudice it would suffer; mere assertion of deteriorating memory due to age, without more, did not displace the appellant's right to a hearing on the merits.
Relying on Ivita and John Harun Mwau v Standard Limited, the Court held that nothing concrete was shown to establish that witnesses were unavailable or that a fair trial was impossible. The respondent, already in occupation of the suit land, would suffer no greater prejudice if the suit proceeded, whereas the elderly appellant stood to lose 8 acres of registered land by being locked out of the seat of justice.
Irrelevance of prior conduct and the 'backdoor appeal' finding on a want-of-prosecution application
The learned Judge erred in taking into account the appellant's failure to appeal the Tribunal's award, since that issue was not properly before the court on a want-of-prosecution application and could only be competently determined after a full hearing.
The trial Judge had found the suit to be a 'backdoor' appeal against the Tribunal award and a second bite of the cherry. The Court held this consideration was extraneous to the dismissal application, amounting to a failure to take into account relevant matters and a taking into account of irrelevant ones, vitiating the exercise of discretion.
Legal principles established
#- An appellate court will not interfere with the exercise of discretion by an inferior court unless the decision is clearly wrong, based on misdirection, reliance on wrong matters, or failure to consider relevant matters leading to a wrong conclusion.
- The test for dismissal of a suit for want of prosecution is whether the delay is prolonged and inexcusable and, if so, whether justice can still be done despite the delay; the applicant must show prejudice such that justice cannot be done.
- It is for the party applying for dismissal for want of prosecution to demonstrate the prejudice it would suffer as a result of the delay.
- Substantial justice is to be elevated over procedural technicalities, but the court must weigh the prejudice to both parties before striking out a document or dismissing a suit.
- Previous conduct of a party prior to filing a suit is not a proper consideration on an application to dismiss a suit for want of prosecution and can only be dealt with after a full hearing.
Court orders
#- 1.The appeal is allowed with no orders as to costs
- 2.The Ruling and Order of the Environment and Land Court dated 29th August, 2016 is set aside
- 3.Kitale Environment and Land Court Land Case No. 200 of 2006 is reinstated
- 4.The appellant to proceed to fix the suit for hearing within 60 days from the date of the judgment
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the leading judgment allowing the appeal, holding that the learned ELC judge failed to consider whether justice could still be done despite the delay and failed to weigh the prejudice to the elderly appellant; the ruling dismissing the suit for want of prosecution was set aside and the suit reinstated.
The Ruling and Order of the Environment and Land Court dated and delivered on 29th August, 2016 is hereby set aside and the Kitale Environment and Land Court Land Case No. 200 of 2006 is hereby reinstated.p. 5
Concurred with the judgment of J. Mohammed, JA, agreeing that the appeal ought to be allowed because the learned Judge did not properly exercise his discretion, and noted delivery in accordance with Rule 32(3) of the Court Rules as Githinji, JA had since retired.
I am in agreement that this appeal ought to be allowed as the learned Judge did not properly exercise his discretion having taken into account matters he should not have taken into account and failed to consider relevant matters.p. 5
- On appeal from
- Environment and Land Court of Kenya at Kitale
- Kitale ELC Case No. 200 of 2006
- Jurisdiction invoked
- First appellate/interlocutory appeal to the Court of Appeal under the Court of Appeal Rules; Rule 32(3) of the Court Rules invoked for delivery of judgment
Relief refused
#Costs of the appeal and of the ELC proceedings
Although the appellant sought costs in both courts, the Court allowed the appeal with no orders as to costs.
Costs
No orders as to costs
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The Ruling and Order of the Environment and Land Court dated and delivered on 29th August, 2016 is hereby set aside and the Kitale Environment and Land Court Land Case No. 200 of 2006 is hereby reinstated. I order that the appellant do proceed to fix the suit for hearing within 60 days from the date hereof.
The test is whether the delay is prolonged and inexcusable and if it is, can justice be done despite such delay.
it is upon the party making the application to show the court the prejudice it would suffer as a result of the delay.
The administration of justice should normally require that the substance of all disputes should be investigated and decided on their merits and that error and lapses should not necessarily debar a litigant from the pursuit of his rights.
The practice nowadays is to elevate substantial justice to the parties over and above the strictures of rules of procedure, which have been stated to be mere hand maidens of justice.
I am in agreement that this appeal ought to be allowed as the learned Judge did not properly exercise his discretion having taken into account matters he should not have taken into account and failed to consider relevant matters.
Issues in the judgment
#The judgment cites Essanji & Another vs Solanki with two different citations ([1968] EA 224 in the submissions passage and [1968] EA 218 in the quotation passage).
The coram lists Githinji, JA but the judgment records that he had retired before delivery.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Pkiech Chesimaya v Limakorwai Achipa [2020] KECA 827 (KLR)", Case Analysis (2020). Civil Appeal No. 16 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/827/eng@2020-04-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.