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ELCPartially AllowedNot stated in judgment· [2016] KEELC 1297 (KLR)

Gladys Njeri Kirugumi v Langata Development Co.Ltd & another [2016] KEELC 1297 (KLR)

Environment and Land Court (not expressly named in the judgment; suit heard by a Judge of the High Court, Hon. Lady Justice Gacheru)
16 December 2016
LGL. Gacheru
2,393 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court reinstated a plaintiff's dismissed land suit, ruling that a lawyer's mistake shouldn't punish the client, though she must pay costs.

What this practically means

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Executive summary

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This is a ruling on the plaintiff's Notice of Motion dated 30th September 2015 seeking to set aside an order made on 29th September 2015 by Hon. Lady Justice Gacheru dismissing her 2007 suit for want of prosecution when neither she nor her advocate attended the hearing, though served. The application, brought under Section 3A of the Civil Procedure Act and various provisions of the Civil Procedure Rules 2010, was supported by affidavits of the plaintiff and her advocate, Mr Nyamai Davies, who explained that counsel was attending three other matters and was overtaken by events. The defendants opposed: the 1st Defendant filed grounds of objection noting that both counsel and plaintiff were absent, that the explanation lacked merit, and that reinstatement of an 8-year-old suit would prejudice it, asking for getting up fees if reinstated; the 2nd Defendant swore a replying affidavit noting the suit had hung over him for nine years and sought throw-away costs. The court considered the Ivita v Kyumbu test and authorities including Shah v Mbogo on setting aside orders. Although it found the explanations for non-attendance not convincing and not believable, the court held that the application was filed without delay and that the mistake of the advocate should not be visited on the innocent plaintiff, whose opportunity to present her case would otherwise be lost. The application was allowed in terms of prayers 2 and 3: the dismissal was set aside and the suit reinstated, on condition that the plaintiff pay the costs of the application and getting up costs of Kshs 30,000/= to the Defendants and set the suit down for hearing within six months, failing which it would stand dismissed. It is so ordered.

Key legal issues

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Whether the dismissal of the plaintiff's suit for want of prosecution should be set aside and the suit reinstated

Holding

The application was allowed despite the court finding the explanations not convincing, because the application was filed without delay, the mistake of counsel should not be visited on the plaintiff, and dismissal would prejudice her by denying her a hearing; reinstatement was granted on terms of costs and getting up fees.

Reasoning

Applying Ivita v Kyumbu and Shah v Mbogo, the court weighed the delay and the weak explanation against the injustice of condemning the plaintiff unheard. Though the reasons for non-attendance were found not believable, the application was filed promptly and the dismissal would extinguish the plaintiff's chance to be heard, so discretion was exercised in her favour on terms protecting the defendants.

p. 4

Legal principles established

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  • The mistake of an advocate should not be visited on an innocent plaintiff, and the court's discretion to set aside dismissal of a suit should be exercised to avoid injustice, on just terms.

Court orders

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  1. 1.The Notice of Motion dated 30th September 2015 is allowed in terms of prayers number 2 and 3
  2. 2.The order of 29th September 2015 dismissing the suit is set aside and the suit is reinstated to be heard on merit
  3. 3.Costs of the application to the Defendants, to be borne by the Plaintiff/Applicant
  4. 4.Applicant/Plaintiff to pay getting up cost of Kshs 30,000/= to the Defendants
  5. 5.Plaintiff/Applicant to ensure the suit is set down for hearing within the next 6 months, failing which the suit will stand dismissed as earlier directed
Jurisdiction invoked
Section 3A of the Civil Procedure Act; Order 10 Rule 11, Order 36 Rule 10 and Order 51 Rule 1 of the Civil Procedure Rules 2010

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Gladys Njeri Kirugumi v Langata Development Co.Ltd & another [2016] KEELC 1297 (KLR)", Case Analysis (2016). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/1297/eng@2016-12-16

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.