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ELCAllowedNot stated in judgment (ruling on Notice of Motion dated 19th March 2019)

John Muange Kithiokoi v Esquire Investment Limited & 5 others [2020] KEELC 3636 (KLR)

Environment and Land Court
6 February 2020
EOE. O. Obaga
829 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~3 min to read original · ~4 min brief

The bottom line

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A Kenyan court reinstated a land suit dismissed when no one showed up, ruling that honest mistakes shouldn't cost anyone their day in court.

What this practically means

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Executive summary

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This Environment and Land Court ruling at Nairobi, delivered by E. O. Obaga J on 6th February 2020, determined a Notice of Motion dated 19th March 2019 by which the Plaintiff sought to set aside the orders of 9th November 2018 dismissing his suit for non-attendance. On the hearing date neither the Plaintiff nor his advocate appeared; the court dismissed the suit. The Applicant explained the absence as inadvertent: the advocate's secretary failed to diarise the hearing date, and exhibited a blank office diary entry, urging that a mistake of an advocate should not be visited on a client. The Respondent opposed, contending the suit was dismissed for non-compliance with court directions and non-attendance, that there had been no consolidation with ELC 952 of 2016 or ELC 1215 of 2014 (the latter withdrawn), and that reinstatement would waste judicial time and prejudice the Respondent. The court framed a single issue: whether the Applicant demonstrated a reason for non-attendance warranting exercise of discretion. Applying the Court of Appeal decisions in Martha Wangari Karua v IEBC and Philip Chemwolo v Augustine Kubende, the court held that natural justice requires no litigant be driven from the seat of justice unheard, and that absent fraud or intent to overreach, defaults may be cured by payment of costs. Distinguishing the Respondent's authorities as concerning want of prosecution, the court allowed the application and reinstated the suit on conditions: payment of Kshs.50,000/= to the Respondent within 14 days and amendment of the Plaint within 14 days, failing which the reinstatement order lapses and the suit stands dismissed.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Applicant has demonstrated that there was a reason for non-attendance to warrant the court exercising its discretion in his favour

Key legal issues

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01

Whether the court should exercise its discretion to set aside dismissal of a suit for non-attendance

Holding

The discretion is exercised in favour of a litigant who demonstrates that non-attendance was inadvertent; an advocate's failure to diarise a hearing date suffices

Reasoning

The court found the Applicant's explanation credible: the advocate's secretary failed to diarise the hearing date, as evidenced by the blank office diary extract. Relying on the Karua and Chemwolo decisions, the court held that blunders should not deny a party a hearing on the merits absent fraud or intention to overreach, and distinguished the Respondent's authorities as concerning dismissal for want of prosecution rather than non-attendance.

p. 1

Legal principles established

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  • A litigant should not be driven from the seat of justice without a hearing, however weak the case
  • A mistake or default that is inadvertent can be put right by payment of costs rather than by denying a party a hearing

Court orders

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  1. 1.The orders of the Court made on 9th November 2018 dismissing the suit are set aside
  2. 2.The suit is reinstated for hearing on condition that the Applicant's lawyers pay Kshs.50,000/= to the Respondent within 14 days from the date of the ruling
  3. 3.The Applicant shall amend the Plaint within 14 days from the date of the ruling
  4. 4.Failure to comply with either condition shall mean the order shall cease to operate and the suit shall stand dismissed

The bench

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One judgment of the whole court — no separate or dissenting opinions.

EO
majority

Wrote the judgment

Jurisdiction invoked
Inherent discretion of the court to set aside dismissal orders for non-attendance (unspecified statutory basis in the ruling)

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

I therefore allow the Applicant's application and set aside the orders of the Court made on 9th November 2018 dismissing this suit.
p. 2final orders - setting aside dismissal
The suit shall be reinstated for hearing on condition that the Applicant's lawyers pay Kshs.50,000/= to the Respondent within 14 days from the date of this ruling.
p. 2conditional reinstatement
failure to comply with any of the two condition shall mean that the order shall cease to operate and this suit shall stand dismissed
p. 2consequences of non-compliance
This court's discretion can only be exercised to assist a person who has demonstrated that failure to attend court was inadvertent.
p. 1discretion to reinstate

Issues in the judgment

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minor

The judgment refers to decisions 'cited by the Respondent' that are not named or set out in the ruling

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, "John Muange Kithiokoi v Esquire Investment Limited & 5 others [2020] KEELC 3636 (KLR)", Case Analysis (2020). Not stated in judgment (ruling on Notice of Motion dated 19th March 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3636/eng@2020-02-06

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