Plaintiff v. 1st & 2nd Defendants (Notice of Motion dated 13th July 2023)
The bottom line
#A Kenyan court refused to revive a suit dismissed for non-attendance because the plaintiff's key witness gave no sworn explanation, ending the case.
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 plaintiff has provided a valid reason for failure to attend court on 30th May 2023
Key legal issues
#Whether the plaintiff gave a valid reason for failing to attend the hearing on 30th May 2023
No - the excuse (an unreachable witness in Turkey affected by an earthquake) was unverified, the witness never swore an affidavit, and counsel could not confirm the witness had been traced or would attend future hearings
Order 12 Rule 7 confers a discretionary power to set aside dismissal for want of prosecution, to be exercised judiciously. The court examined the history of adjournments and found the plaintiff's counsel gave inconsistent and unverified explanations. The sole witness/director did not swear any affidavit confirming availability, leaving the court with no assurance the suit could proceed even if reinstated.
Legal principles established
#- The power to set aside an order dismissing a suit for want of prosecution is discretionary and must be exercised judiciously, not whimsically or capriciously
- In setting aside dismissal for want of prosecution, the court must interrogate the excuse for the delay and the circumstances leading to the dismissal
Court orders
#- 1.The plaintiff's Notice of Motion dated 13th July 2023 seeking to set aside the order of dismissal of 30th May 2023 and to reinstate the suit is dismissed
- 2.Costs of the application awarded to the 1st defendant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Order 12 Rule 7 of the Civil Procedure Rules (inherent power to set aside dismissal of suit for want of prosecution)
Relief refused
#Setting aside the order of dismissal of 30th May 2023 and reinstatement of the suit for hearing on merit
The reasons for non-attendance were inexcusable; the sole witness/director did not swear an affidavit confirming he has been traced or would attend any future hearing
Costs
Costs of the application to the 1st defendant
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.
Therefore the power to set aside an order dismissing a suit for want of prosecution is discretionary, and the court ought to exercise its discretion judiciously and not whimsically or capriciously.
The test applied by court in the application for dismissal of suits for want of prosecution is whether the delay is prolonged and inexcusable and if it is, whether justice can be done despite the delay.
In the premises, I find no merit in the plaintifi’s application dated 13th July 2023 and the same is hereby dismissed with costs to the 1st defendant.
Issues in the judgment
#The judgment refers to non-attendance on '30th May 2024' in paragraph 20, whereas the hearing and dismissal occurred on 30th May 2023 - an apparent typographical error in the date
The supporting affidavit attributes the witness's unavailability to an earthquake in Turkey 'in 2022', whereas the well-known Turkey earthquake occurred in 2023; the judgment itself notes the witness was unreachable on 30th May 2023, making a 2022 event an incomplete explanation
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Plaintiff v. 1st & 2nd Defendants (Notice of Motion dated 13th July 2023)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6277/eng@2024-09-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.