SALKAS CONTRACTORS LIMITED V. KENYA PETROLEUM REFINERIES LIMITED

JUDGMENT OF THE COURT

This appeal arises from the ruling of Hayanga, J. delivered on the 14th day of February, 2002 in which the learned Judge allowed an application by way of notice of motion dated 6th April, 2001 under Order XVI rule 5 of the Civil Procedure Rules and section 3A of the Civil Procedure Act for orders that the appellant’s suit be dismissed for lack of prosecution. In allowing the same application, the learned Judge stated:

“The test in a case of this type is whether delay is prolonged and inexcusable, and if it is can justice be done despite such delay.

I think in this case delay will in fact cause injustice to the Defendant looking at both sides of the case and I believe there is no good reason shown for the delay. I therefore allow this application and dismiss the case for lack of prosecution.”

The facts giving rise to this appeal, briefly stated, are as follows: By a plaint dated 14th September, 1999, the appellant, through its advocates, Mohamed Madhani and Co., sued …