Plaintiffs/Applicants v 4th Defendant/Respondent (Notice of Motion dated 8th June 2023 – reinstatement of dismissed suit)
The bottom line
#The Environment and Land Court in Murang'a reinstated a dismissed land case, but only on strict conditions: comply with pre-trial rules in 21 days or the dismissal returns automatically.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the application dated 8th June 2023 seeking to set aside the dismissal orders of 5th June 2023 and reinstate the suit is merited
Key legal issues
#Whether the dismissal of the suit for non-attendance and non-compliance with Order 11 should be set aside
The application was allowed; the dismissal order of 5th June 2023 was set aside and the suit reinstated, with strict timelines for compliance and hearing.
The Court found that although counsel's bereavement was unsupported by evidence, it was excusable and the plaintiffs could not be faulted for their advocate's non-appearance at a mention. There was no evidence counsel informed the clan-litigants of the mention date, so their absence was not deliberate indolence on that occasion. The discretion under Order 12 Rule 7 and Section 3A was exercised judiciously, balanced against the plaintiffs' 3-year delay in complying with Order 11, which was not excusable.
Whether the plaintiffs' delay and non-compliance with pre-trial directions disentitled them to reinstatement
The delay was condemned but did not defeat reinstatement; conditional reinstatement was granted with an automatic reversion clause.
The Court held the suit was dismissed for failure to comply with Order 11 and non-attendance, observing that a party taking three years to comply with pre-trial directions is not serious. The plaintiffs were described as indolent litigants. Nonetheless, weighing hardship and injustice, the Court granted one final chance, conditioned on compliance within 21 days, failing which the dismissal reverts automatically.
Legal principles established
#- Reinstatement of a dismissed suit is discretionary and must be exercised judiciously to avoid injustice or hardship from accident, inadvertence or excusable mistake, considering prejudice to the applicant.
- Mistakes of counsel should not be visited on the client where the situation can be remedied by costs, though not every advocate's mistake justifies setting aside orders.
Court orders
#- 1.The ex parte order of 5th June 2023 dismissing the Plaintiffs/Applicants' suit is set aside and/or varied
- 2.The Plaintiffs/Applicants' suit is reinstated and to be set down for hearing expeditiously and concluded within 120 days from the date of the Ruling
- 3.Plaintiffs/Applicants to comply with Order 11 of the Civil Procedure Rules within 21 days, failing which the order of dismissal will revert and remain in place automatically
- 4.The 4th Defendant/Respondent is awarded throw away costs of Kshs. 5,000/= payable before the date of the next court appearance
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Sections 1A, 1B, 3A Civil Procedure Act and Order 12 Rule 7 Civil Procedure Rules
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Consequently, the ex parte order of 5th June 2023, which Order dismissed the Plaintifis/Applicants’ suit is hereby set aside and/ or varied. The court proceeds to reinstate the Plaintifis/ Applicants suit, with an order that the same should be set down for hearing expeditiously, and be concluded within the next 120 Days, from the date of this Ruling.
Further, the Plaintifis/ Applicants to comply with Order 11 of Civil Procedure Rules, with the next 21 days, from the date hereof. Failure to do so, the order of dismissal will revert and remain in place automatically.
The 4th Defendant/Respondent attended court on 5th June 2023, and thus is entitled to throw away costs of 5000/=, payable before the date of the next court appearance.
This discretion to set aside an exparte judgment is intended to be exercised to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake or error, but it’s not designed to assist the person who has deliberately sought whether by evasion or otherwise to obstruct or delay the cause of justice.
Issues in the judgment
#The judgment states the plaintiffs 'cannot be faulted' and their counsel's non-attendance due to bereavement 'is excusable', yet earlier describes them as indolent litigants who lost interest in the suit.
The judgment alternately describes the hearing of 5th June 2023 as set down for hearing and for mention.
Inconsistent citation of Shah v Mbogo as (1968) and (1967) EA 116 and Mbogo & Another v Shah.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Plaintiffs/Applicants v 4th Defendant/Respondent (Notice of Motion dated 8th June 2023 – reinstatement of dismissed suit)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1440/eng@2024-03-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.