Hassan Mohamed Hussein & another v Kenya Revenue Authority & another [2020] eKLR Case Summary

Explore the 2020 eKLR case summary of Hassan Mohamed Hussein & another v Kenya Revenue Authority & another, highlighting key legal findings and implications.

Case Brief: Hassan Mohamed Hussein & another v Kenya Revenue Authority & another [2020] eKLR

1. Case Information:
- Name of the Case: Hassan Mohamed Hussein & Said Mohamed Abdi Both T/A Western Investments v. Kenya Revenue Authority & Kenya Ports Authority
- Case Number: Civil Case No. 140 of 2011
- Court: High Court of Kenya at Mombasa
- Date Delivered: 7th October 2020
- Category of Law: Civil
- Judge(s): D. O. Chepkwony
- Country: Kenya

2. Questions Presented:
The central legal issue before the court was whether the Plaintiff's application dated 4th April 2018, seeking to reinstate a suit that had been dismissed for want of prosecution, should be dismissed for want of prosecution due to the delay in its hearing.

3. Facts of the Case:
The Plaintiff, Hassan Mohamed Hussein and Said Mohamed Abdi, doing business as Western Investments, filed a suit against the Kenya Revenue Authority and the Kenya Ports Authority. The Plaintiff's application dated 4th April 2018 had not been set for hearing since 17th September 2018. The 1st Defendant argued that the Plaintiff had lost interest in prosecuting the case, while the Plaintiff contended that delays were due to their former Advocate's failure to communicate about the case's progress.

4. Procedural History:
The case was initiated by the Plaint dated 27th May 2011. The 1st Defendant filed a Statement of Defence on 5th July 2011, and the 2nd Defendant followed suit on 16th September 2011. The court had previously directed compliance with pre-trial requirements on 5th March 2014, but the case was dismissed for want of prosecution on 8th July 2015 due to inactivity. The Plaintiff subsequently filed an application to reinstate the suit, which had not been heard until the 1st Defendant sought its dismissal in November 2019.

5. Analysis:
Rules:
The court examined Order 17 Rule 2(3) of the Civil Procedure Rules, which allows for dismissal of a suit if no steps are taken for a year. The court emphasized that the burden of proof lies with the party seeking dismissal to demonstrate that there has been an inordinate delay without reasonable cause.

Case Law:
The court referenced *Al Amin Agency v. Sharrif Omar & Another*, where it was established that dismissal for want of prosecution should be a last resort and requires consideration of whether there has been inexcusable delay and whether justice can still be served. The court also cited *Edney Adaka Ismail v. Equity Bank Limited*, emphasizing that the responsibility for prosecuting a case lies with the litigant, not their advocate.

Application:
The court found that the Plaintiffs had not provided a reasonable explanation for the delay in prosecuting their application. The court noted that the Plaintiffs had a duty to follow up on their case and could not solely blame their former advocate for the lapse. The court concluded that the delay of over a year was inexcusable, and the interests of justice favored the Defendants, who had been waiting for resolution since the initial suit was filed in 2011.

6. Conclusion:
The court ruled that the Plaintiff's application dated 4th April 2018 was to be dismissed for want of prosecution, with costs awarded to the Defendants. The ruling underscored the importance of diligence on the part of litigants in pursuing their cases.

7. Dissent:
There were no dissenting opinions noted in this case.

8. Summary:
The High Court of Kenya dismissed the Plaintiff's application for want of prosecution, emphasizing the responsibility of litigants to ensure their cases are actively pursued. The decision highlights the balance between the rights of plaintiffs to seek justice and the need for defendants to have closure in legal proceedings. The ruling serves as a reminder of the consequences of inaction in civil litigation.