Mukisa Biscuit Manufacturing Co Ltd v.

West End Distributors Ltd [1969] 1 EA 696

[1] Civil Practice and Procedure – Application – To dismiss suit for want of prosecution – To be made by
motion.

[2] Civil Practice and Procedure – Inherent jurisdiction – Dismissal of suit for want of prosecution – Court
has inherent power to order – Civil Procedure Act, s. 97 (K.).

[3] Civil Practice and Procedure – Preliminary point – Points of law only to be so raised.

[4] Civil Practice and Procedure – Want of prosecution – Dismissal of suit – Whether court has inherent
power to order, apart from Civil Procedure (Revised) Rules 1948, O. 16, rr. 5 and 6, and O.9, r. 16 – Civil
Procedure Act, s. 97 (K.).

[5]Civil Practice and Procedure – Want of prosecution – Dismissal of suit – Whether it will be ordered
when both parties had contributed to the delay.

Editor’s Summary

At the opening of the hearing of a suit in the High Court the appellant, the defendant in that suit, asked
the judge by way of preliminary objection to dismiss the suit for want of prosecution. The judge held
that the case did not fall within any of the provisions of Orders 9 and 16, Civil Procedure (Revised) Rules
1948, and, following Saldanha and Others v. Bhailal & Co. and Others (1) that he had no inherent power
to dismiss the suit. The order was appealed against, but in the meantime the suit had been heard and
judgment given for the respondent.

Held ;-

(i) that court had inherent power to dismiss the suit notwithstanding that the case did not fall within
any of the specific provisions of the Civil Procedure (Revised) Rules 1948, which do not purport to be
exclusive (Saldanha and Others v. Bhailal and Co. and Others (1) overruled);

(ii) application to dismiss a suit for want of prosecution should be made by motion;

(iii) it could not be said that the judge would have dismissed the suit had he appreciated that he had
power to do so, as both sides had contributed to the delay. Observations on the prevalence of
improperly raising points by way of preliminary objection.
Cases referred to in judgment:

(1) Saldanha and Others v. Bhailal & Co. and Others, [1968] E.A. 28.

(2) Mulji v. Jadavji, [1963] E.A. 217.

(3) Rawal v. Mombasa Hardware Ltd., [1968] E.A. 392.

(4) Fitzpatrick v. Batger, [1967] 2 All E.R. 657.

(5) Allen v. McAlpine, [1968] 1 All E.R. 543.

(6) Clough v. Clough, [1968] 1 All E.R. 1179.

(7) Marlton v. Lee-Levitan, [1968] 2 All E.R. 874.

(8) Gloria v. Sokoloff, [1969] 1 All E.R. 204.

(9) Hogan v. Adrianwalla, [1965] E.A. 594.

(10) Mandavia v. Rattan Singh, [1965] E.A. 118.

(11) Baker v. Rush, [1964] E.A. 602.

July 31, 1969. The following considered judgments were read:

Judgment

Law JA: The suit out of which this appeal arises began by a plaint filed as long ago as August 22, 1961.
The defence, which included a counterclaim, was filed on February 15, 1962, and the pleadings closed
with a reply to the counter-claim filed on May 3, 1962. On June 8, 1962, the defendant obtained
judgment on the counter-claim. Since then hearing dates for the trial of the plaintiff’s claim have been
fixed on six occasions, and taken out on five occasions, sometimes on the plaintiff’s application and
sometimes on that of the defendant. The final hearing date was fixed “by consent” on September 28,
1967, for February 26, 27, 28 and 29, 1968. The hearing in fact began on February 27, 1968. It was
preceded by a so-called “preliminary objection” taken on behalf of the defendant, notice whereof had
been served on the plaintiff five days previously, asking that the suit be dismissed for want of
prosecution “pursuant to the inherent and other powers of the court”. Mr. Khanna for the defendant
was heard in support of this “preliminary objection”; Mr. Gautama for the plaintiff was not called upon
to reply; and the trial judge ruled as follows: “Preliminary objection overruled for reasons to be given
later.” The plaintiff then called his evidence, after which the further hearing of the suit was adjourned
and for reasons which are not apparent was not resumed until nearly a year later on January 29, 1969.
At some time before this date, it is not clear when, the reasons for overruling the preliminary objection
were made available to the parties although never read in open court. On January 29, 1969, Mr.
Wilkinson, Q.C. who had been brought in by the defendant to lead Mr. Khanna, sought leave to adduce
further argument in support of the preliminary objection. The learned judge refused to allow the matter
to be reopened;
by consent of the parties the reasons for overruling the preliminary objection were then taken as having
been read, whereupon Mr. Wilkinson applied for and obtained leave to appeal against that decision, but
the judge refused to stay the further hearing of the suit pending a decision in the appeal. Mr. Wilkinson
then obtained an adjournment on the ground that his principal witness was ill. The hearing was
eventually resumed on April 14, 1969, when Mr. Gautama closed the plaintiff’s case. Mr. Wilkinson then
raised yet another preliminary objection to the further hearing of the suit, this time formally applying
for the further hearing to be stayed pending the hearing of this appeal. This preliminary objection was
overruled, whereupon Mr. Wilkinson announced that his appearance henceforth was under protest and
that he would call no evidence. However he addressed the court at length, and judgment was reserved.
On May 12, 1969, judgment was delivered in favour of the plaintiff. Against that judgment notice of
appeal has been given and an appeal is pending to this court. I revert to the appeal which is now before
this court. The appellant is the defendant, the respondent is the plaintiff and the appeal is against the
learned judge’s decision overruling the “preliminary objection” asking for the suit to be dismissed for
want of prosecution; the judge holding that the application did not fall within any of the specific
provisions of Order 16, and that the court had no inherent jurisdiction to dismiss the suit for reasons
other than those specified in the Civil Procedure Rules following in this respect the decision of Dalton, J.,
in Saldanha and Others v. Bhailal & Co. and Others, [1968] E.A. 28.

When this appeal opened before us, it was a matter of no surprise, having regard to the course taken in
the past, that the proceedings began with yet another preliminary objection. This time it was made by
Mr. Gautama for the respondent, and was to the effect that the appeal should be struck out as
incompetent, because there was no appeal against Farrell, J.’S refusal to order a stay, and the suit had
gone on for hearing, with the appellant participating, and judgment on the merits had been given. We
dismissed this preliminary objection, reserving the reasons. Mr. Gautama’s argument is, as I understand
it, that even if this appeal succeeds, it will have no effect as the suit has in fact been disposed of. I do not
accept this argument. If this appeal succeeds fully, and this court holds that Farrell, J., should have
dismissed the suit for want of prosecution, the effect would be that all subsequent proceedings in the
suit were a nullity and the final judgment and decree of no effect. Leave to appeal was obtained, and
notice of intention to appeal given, several weeks before judgment on the merits was delivered.
Although it seems arguable that this appeal is out of time, leave to appeal not having been obtained
until nearly a year after delivery of the ruling appealed against, the point was not taken on behalf of the
respondent and in the absence of argument I shall assume for the purposes of this judgment that the
appeal is competent.

The first three grounds of appeal are directed against the learned judge’s decision that he had no
inherent jurisdiction to dismiss the suit for want of prosecution. Mr. Gautama concedes that these
grounds must succeed, and has never contended otherwise. Order 16 provides for three ways whereby
a suit can be dismissed for want of prosecution. By r. 2 if no application is made within twelve months to
fix a hearing date after a suit has been generally adjourned, the court may give notice to the parties to
show cause why the suit should not be dismissed. By r. 5, if the plaintiff does not set down the suit for
hearing within a prescribed period, the defendant may either set it down or apply for it to be dismissed
for want of prosecution. By r. 6 the court may of its own motion dismiss a suit in which no step has been
taken for a period of three years. By O. 9, r. 16 the court may order the dismissal of a suit where the
summons has been returned unserved and the plaintiff fails within a year to apply for the issue of a
fresh summons. Dalton, J., held in Saldanha’s case (supra) that there was no inherent power in a court
to dismiss a suit for want of prosecution in cases falling outside the specific provisions quoted above.

Farrell, J., adopted this view. Dalton, J., in Saldanha’s case purported to follow the decision of Windham,
C.J., in Mulji v. Jadavji, [1963] E.A. 217, but all that case decided was that the court’s inherent
jurisdiction could not be invoked where an alternative remedy had been available. In the instant case, it
is clear that none of the specific provisions for dismissing suits applied to the suit the subject of this
appeal. That being so, I do not see how the court’s inherent jurisdiction can be said to be fettered, as no
alternative remedy existed. To take a hypothetical case, let us imagine that a plaintiff, who has taken no
step in a suit for nearly three years, applies for a hearing date so as to prevent the court exercising its
jurisdiction under O. 16, r. 6, repeating the process every three years, merely to keep the suit alive
without intending to prosecute it. Surely a court could invoke its inherent jurisdiction and strike out the
suit, under s. 97 of the Civil Procedure Code, to prevent abuse of the process of the court and to avoid
injustice? As Sir Charles Newbold, P., said in Rawal v. Mombasa Hardware Ltd., [1968] E.A. 392: “Now I
think that any rule which purports to take away the inherent jurisdiction of the courts should be looked
at very carefully before it is construed in such a manner.”

I am of the opinion that the provisions of the Civil Procedure Rules for the dismissal of suits for want of
prosecution do not purport to be exclusive, and do not fetter the court’s inherent jurisdiction to dismiss
suits in circumstances not falling directly within those provisions, if it is necessary to do so to prevent
injustice or abuse of the process of the court. With respect, I consider Saldanha’s case (supra) to have
been wrongly decided, in so far as it holds that the court’s inherent jurisdiction cannot be invoked in
cases falling outside those specifically provided for in the rules.

The position is that in my view the learned trial judge was wrong in holding that he had no inherent
jurisdiction to strike out the suit, the subject of this appeal. What should now be done? Mr. Wilkinson
submits that the matter should be sent back to the High Court for reconsideration of the “preliminary
objection”. In the alternative he concedes that this court has the same powers as the High Court to deal
with the matter. I see no point in sending the matter back to the High Court, as Farrell, J., has left the
country, and this court is in as good a position as another judge of the High Court to deal with it.

As to this, Mr. Wilkinson submits that the delay of six years between the close of pleadings and the
hearing has been gravely prejudicial to the appellant. Although the appellant consented to the suit
being removed from the hearing list in May, 1965, Mr. Wilkinson submits that the subsequent delay of
some two and a half years on the part of the respondent is quite inexcusable, and must have resulted in
the suit being dismissed had the judge not erroneously thought he had no power to do so.
In support of this contention, Mr. Wilkinson cited as persuasive authority a number of recent English
cases in which the courts in England have dismissed suits for want of prosecution in circumstances not
dissimilar to those now under consideration. In particular Mr. Wilkinson relied on Fitzpatrick v. Batger,
[1967] 2 All E.R. 657; Allen v. McAlpine, [1968] 1 All E.R. 543; Clough v. Clough, [1968] 1 All E.R. 1179;
Marlton v. Lee-Leviten, [1968] 2 All E.R. 874; and Gloria v. Sokoloff, [1969] 1 All E.R. 204.

Mr. Gautama has cross-appealed in support of the learned judge’s refusal to dismiss the suit on a
number of grounds. Firstly, he submits that the appeal is futile as the case has in fact proceeded to
judgment. I have already expressed the view that this consideration is not effective to prevent this
appeal from being heard and the further proceedings, if necessary, being held null and void. Secondly,
he submits that the appellants were estopped from invoking the court’s inherent jurisdiction as they had
consented to the fixing of the hearing date. I see no merit in this ground; no consent to a hearing date
can preclude the exercise of the court’s discretion to dismiss the suit if the circumstances require such a
course. Mr. Gautama’s main ground of cross-appeal is that the procedure adopted by the appellant in
invoking the High Court’s jurisdiction to dismiss the suit was wrong and misconceived. The matter was
raised in the guise of a preliminary objection, which it was not. It should have been raised in the form of
an application by way of motion, as provided by Order 50. Had this been done, affidavits would have
been filed, and the respondent could have given reasons for the delay in prosecuting the suit. As it is, Mr.
Gautama was not called on to reply to the arguments in support of the so-called preliminary objection,
and has had no opportunity to put forward reasons justifying the apparently inordinate delay in
prosecuting the suit. Mr. Gautama also submits that if the appellant honestly believed it was prejudiced
by the delay, it could long ago have made the necessary application by notice of motion.

I have considerable sympathy with Mr. Gautama’s main ground. I agree that the application for the suit
to be dismissed for want of prosecution should have taken the form of a motion, and not that of a
“preliminary objection”, which it was not. So far as I am aware, a preliminary objection consists of a
point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if
argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of
the court, or a plea of limitation, or a submission that the parties are bound by the contract giving rise to
the suit to refer the dispute to arbitration. However, as the learned judge in fact entertained the
application, notwithstanding its defective form, and decided it in the respondent’s favour, the cross-
appeal on this point cannot have any practical effect. I would dismiss the cross-appeal, which
incidentally we admitted out of time, and which was opposed by the inevitable preliminary objection
that it was out of time, an objection which I consider to have been unnecessary as it was obvious on the
face of it that the cross-appeal was out of time and could not be entertained unless this court granted
the necessary extension of time.

In reply to the appeal itself Mr. Gautama urged that too much weight should not be attached to the
English authorities relied on by Mr. Wilkinson, as conditions of practice in England and Kenya are not
necessarily comparable. He also pointed out that in all the English cases a proper application for
dismissal had been made by way of motion, and he repeated his contention that the adoption of the
wrong procedure in this case had been to his disadvantage, as he had had no opportunity to place on
record his reasons why the suit should not be struck out. I think there is considerable force in these
arguments. I am not convinced that if the learned judge had appreciated that he had an inherent power
to dismiss the suit, he would have done so; nor do I think that this court should feel compelled to take
such action. Without wishing in any way to condone the inordinate delay which has undoubtedly
occurred in this case it seems to me that both sides contributed to the delay in reaching a hearing, and
that if the appellant genuinely believed itself to be prejudiced by the delay, it would have applied for
dismissal at a much earlier stage. For these reasons, I would dismiss the appeal with costs. I would also
dismiss the cross-appeal, with costs. I would dismiss, with costs, the respondent’s preliminary objection
to the competency of this appeal. I would dismiss, with no order for costs, the appellant’s preliminary
objection to the cross-appeal being heard. I would certify for two advocates in respect of the appeal
only. Sir Charles Newbold P: The facts relating to this appeal are set out in the judgment of Law, J.A.,
which I have had the advantage of reading in draft. I agree with it and, except in relation to three
matters, I do not wish to add to what he has said.

The first matter relates to the increasing practice of raising points, which should be argued in the normal
manner, quite improperly by way of preliminary objection. A preliminary objection is in the nature of
what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the
facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if
what is sought is the exercise of judicial discretion. The improper raising of points by way of preliminary
objection does nothing but unnecessarily increase costs and, on occasion, confuse the issues. This
improper practice should stop.

The second matter relates to the undoubted delay in the hearing by the High Court of this case. It is the
duty of a plaintiff to bring his suit to early trial, and he cannot absolve himself of this primary duty by
saying that the defendant consented to the position. In this case there was undoubtedly excessive delay.
It may well be that had all the facts been properly placed before the trial judge he, or on appeal this
court, might have performed the draconian act of dismissing the suit for want of prosecution. But they
were not; and in all the circumstances of this case I do not consider that this court should take this
drastic step. I have no hesitation in coming to the conclusion that, having regard to the improper
procedure adopted, the paucity of facts before the court and the inevitable dispute as to what are the
facts, this case should not be remitted to the High Court for a new judge to exercise his discretion, a
discretion which could only be exercised on the position as it was at the time the preliminary objection
was taken, as the defendant could not be allowed two bites at the cherry. I wish, however, to make it
clear that in future a plaintiff who, for whatever reason, delays for over six years before bringing his suit
for trial can expect little sympathy.

The third matter is that it may well be that the appeal is not competent for two reasons. The first is that
the decision which gives rise to the appeal was given on February 27, 1968 (see Hogan v. Adrianwalla,
[1965] E.A. 594) but no leave to appeal against that decision was given within time; nor was any appeal
against that decision lodged in time; nor does this appeal purport to be an appeal against that decision.
Instead, the appeal purports to be against a ruling given on January 29, 1969, in respect of which a
formal order was drawn up and in relation to which leave to appeal was granted though on that day all
that happened was that the reasons for the decision of February 27, 1968, were set out. The second is
that the decision was not a judgment, nor did it result in a decree (see Mandavia v. Rattan Singh, [1965]
E.A. 118) and it may well be that the points raised on this appeal should more properly have been raised
on an appeal against the decree given on final judgment (see Baker v. Rush, [1964] E.A. 602 quoting with
approval at p. 605 a passage from Maharajah Makeshu Singh v. The Bengal Government). These points,
however, have not been argued and in these circumstances I do not think that I should base my decision
on either of them. I do, however, refer to them in order to make it clear that our decision must not be
taken as determining in any way either of these two points.

For these reasons I would dismiss this appeal and there will be an order in the terms proposed by Law,
J.A. Duffus V-P: I have read and agree with the judgments of Law, J.A and Newbold, P.

Appeal dismissed. Cross-appeal dismissed.