MUKISA BISCUIT MANUFACTURING CO. LTD. v.

WEST
END DISTRIBUTORS LTD.
: E
[CourT oF APPEAL AT Nartroei (Sir Charles Newbold, P., Duffus, V.-P., and
Law, J.A.), July 8, 9 and 31, 1969.]

(119/69) CrviL ArpeaL No. 9 oF 1969.-

(Appeal from the High Court of Kenya at Nairobi—FARRELL, J.) F

Civil Practice and Procedure—Application—To dismiss suit for want ofprosecution

—To be made by motion.
Civil Practice and Procedure—Inherent jurisdiction—Dismissal of suit for ‘want
of prosecution—Court has inherent power to order—Civil Procedure Act,
5. 97 (K.).
Civil Practice and Procedure—Preliminary point—Points of law only to be so
raised.
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 H
Act, 5. 97 (K.).
Civil Practice and Procedure—Want of prosecution— Dismissal of suit— Whether
it will be ordered when both parties had contributed to the delay.

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.
 CA. MUKISA BISCUIT CO. v. WEST END DISTBRS. (LAW, J.A)) 697

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 exclustve (SaIdanha
and Others V. Bhailal and Co. and Others (1) overruled);
(ii) apphcahon to dismiss a suit for want of prosecution should be made by
motion;
(iii) it could not be said that the Judge would have d:sm:ssed 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 pre-
liminary objection.

Cases referred to:

(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 Lid., {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.
P. J. Wilkinson, Q.C. and D. N. Khanna for the appellant.
S. C. Gautama and H. M. Parekh for the respondent.

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

LAW, J.A.: 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 counter-
claim, 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 couri. 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 pre-
liminary objection. The learned judge refused to allow the matter to be re-
698 EAST AFRICA LAW REPORTS [1969] E.A.

opened; 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 shouid 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 procezdings 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 ad-
journed, 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. § the court may of its
own motion dismiss a suit in which no step has been taken for a period of three
years. By 0.9, r. 16 the court may order the dismissal of a suit where the
 C.A. MUKISA BISCUIT CO. v. WEST END DISTBRS. (LAw, J.A.) 699

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 jurisdi~tion 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 AILE.R. 543; Clough v. Clough, [1968] 1 All E.R. 1179; Marlton v. Lee-Leviten,
[1968] 2 All E.R. 874; and Gloria v. Sokaloff, [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
700 EAST AFRICA LAW REPORTS [1969] E.A.

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 con-
ditions 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
 C.A. MUKISA BISCUIT CO. v. WEST END DISTBRS. (NEwBOLD, P.) 701
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 de-
murrer. 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 dis-
missing 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 pre-
liminary 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, hewever, 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.
Advocates: Khanna & Co., Nairobi (for the appellant); Satish Gautama,
Nairobi (for the respondent).