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ELCPartially AllowedNot stated in the ruling

Omeno v Andajo & another (Environment & Land Case 3 of 2022) [2024] KEELC 5921 (KLR)

Environment and Land Court
19 September 2024
2,152 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court reinstated a dismissed case after a lawyer missed a hearing by honest mistake, but only on condition the defendants pay costs within 7 days.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Siaya, delivered by Hon. A. Y. Koross, J on 19 September 2024, determines the defendants' notice of motion dated 2 February 2024 seeking, under Order 12 Rule 7 of the Civil Procedure Rules, to vary and set aside the court's order of 13 December 2023 dismissing their application dated 9 November 2023 for non-attendance, and to reinstate that application. The defendants' counsel attributed the non-attendance to an unintentional failure to diarize the hearing date, corroborated by an extract of her diary and by her demonstrated compliance with prior court orders, including payment of Kshs. 30,000/- to the plaintiff. The plaintiff opposed the motion, arguing inordinate delay and laches, noting the dismissed application was filed some 2½ years after the judgment of 13 May 2021, and that the instant motion was filed 1½ months after the dismissal. Relying on Shah v Mbogo, Wachira Karani v Bildad Wachira, Simon Thuo Mwangi v Unga Feeds, and the Madan JA dictum in Belinda Murai v Amoi Wainaina (as cited in Leiyagu v IEBC), the court held that the failure to diarize was an excusable mistake constituting sufficient cause, and that the motion was filed promptly. The court also noted it is bound by the Court of Appeal decision in Adanjo & another v Omeno, which declined to stay execution of the certificate of costs. The motion was allowed: the dismissal order was set aside, the application of 9 November 2023 reinstated, with costs of Kshs. 10,000/- awarded to the plaintiff payable within 7 days, failing which the reinstatement would stand vacated; further directions were set for 28 October 2024.

Questions the Court framed

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

  1. 1.Whether the defendants have met the threshold to warrant the variation or setting aside of the orders issued on 13/12/2023
  2. 2.What orders should this court issue including an order as to costs

Key legal issues

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01

Whether the defendants' failure to attend the hearing on 13/12/2023 was excusable so as to justify setting aside the dismissal under Order 12 Rule 7

Holding

Yes. The failure to diarize was a genuine mistake; the counsel had complied with earlier court orders, including paying Kshs. 30,000/- to the plaintiff, which corroborated her explanation. The motion was also filed promptly, so there was no inordinate delay.

Reasoning

The court exercised its discretion under Order 12 Rule 7 guided by Shah v Mbogo and related authorities, holding that the discretion exists to avoid injustice from inadvertence or excusable mistake. The diary extract and counsel's compliance with prior orders (payment of Kshs. 30,000/- and service of the hearing notice) showed the non-attendance was an unintentional oversight, not deliberate evasion. The motion was filed within two months of the dismissal.

p. 4
02

Whether the plaintiff's laches argument barred the motion

Holding

No. The motion was filed less than two months after the dismissal; any delay in filing the underlying application dated 9/11/2023 should have been raised against that application, not the instant one.

Reasoning

The court found the delay argument misplaced: the timeliness of the dismissed application was a matter for attacking that application on its own merits, while the present motion was filed promptly after the dismissal and thus the defendants were not guilty of laches in seeking reinstatement.

p. 5

Legal principles established

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  • A mistake by counsel, including failure to diarize a hearing date, may constitute sufficient cause for setting aside an order of dismissal where the interests of justice so dictate.
  • Sufficient cause is a question of fact assessed in the special circumstances of each case, with no universal formula.

Court orders

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  1. 1.The order issued on 13/12/2023 dismissing the application dated 9/11/2023 for want of attendance is set aside and the application is reinstated
  2. 2.The defendants shall pay the plaintiff costs of Kshs. 10,000/- within 7 days and in default, the order reinstating the application shall stand vacated
  3. 3.Further directions to be issued on 28/10/2024

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Order 12 Rule 7 of the Civil Procedure Rules; Sections 1A and 1B of the Civil Procedure Act; Article 159(2)(b) of the Constitution

Relief refused

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Interim stay of execution

The court is bound by the Court of Appeal decision in Adanjo & another v Omeno which declined to stay execution of the certificate of costs; the ruling does not grant any stay of execution.

p. 5

Costs

Costs awarded to the plaintiff, assessed at Kshs. 10,000/-, payable by the defendants within 7 days, failing which the reinstatement order shall stand vacated.

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.

The order issued on 13/12/2023 dismissing the application dated 9/11/2023 for want of attendance is hereby set aside and the application is hereby reinstated.
p. 5Final orders - reinstatement
The defendants shall pay the plaintifi costs of Ksh. 10,000/- within 7 days from today and in default, the order reinstating this application shall stand vacated.
p. 5Conditional costs order
This discretion (to set aside ex parte Court decisions) is intended to be exercised to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake or error
p. 4Principles for setting aside ex parte orders (Shah v Mbogo)
Suficient cause is a question of fact and the court has to exercise its discretion in the varied and special circumstances in the case at hand.
p. 3Definition of sufficient cause (Wachira Karani v Bildad Wachira)

Issues in the judgment

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minor

The citation of Shah v Mbogo appears garbled, conflating it with John Waweru Njenga & 5 others v Motor Botique [2020] eKLR

minor

The court notes plaintiff's counsel misquoted the Ichatha decision

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, "Omeno v Andajo & another (Environment & Land Case 3 of 2022) [2024] KEELC 5921 (KLR)", Case Analysis (2024). Not stated in the ruling. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5921/eng@2024-09-19

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