Mtile & 2 others v Mwamburi & another (Land Case 62 of 2019) [2025] KEELC 1105 (KLR)
The bottom line
#Kenya's Land Court reinstated a dismissed land case, ruling a lawyer's honest mix-up between virtual and physical court shouldn't cost clients their day in court.
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 Applicants have tendered a reasonable explanation for their failure to attend Court on the date their suit was dismissed?
- 2.Whether there is a basis for the Court to exercise its discretionary power to set aside the orders and proceedings of the 4th November 2024 and reinstate this suit?
- 3.Who bears the Costs of the Notice of Motion application dated 4th November, 2024?
Key legal issues
#Reasonable explanation for non-attendance
The Applicants gave a probable and truthful explanation; counsel logged into the virtual platform but the matter proceeded in physical court
The court accepted counsel's account that he was in the Teams virtual proceedings at 9:00am, took a 12:00pm time indication, logged back at 11:50am with witnesses, and only discovered the matter had been handled in physical court when he went to find out why he was not admitted. That was a bona fide mistake amounting to sufficient cause under Order 12 Rule 3(1), and counsel's error should not be visited on the client.
Discretion to set aside dismissal and reinstate suit
The court exercised its discretion to set aside the dismissal and reinstate the suit, subject to thrown away costs
Resting on the inherent power under Section 3A of the Civil Procedure Act and guided by Shah v Mbogo, Rawal v Mombasa Hardware, Belinda Muras, Phillip Chemwolo and Martha Karua, the court held the overriding objective of Articles 50 and 159(2) and Sections 1A and 1B required a fair hearing; any inconvenience to respondents could be remedied by thrown away costs, and the land dispute remained fit for trial on the merits.
Legal principles established
#- A bona fide mistake that is not unreasonable is sufficient excuse under Order 12 Rule 3(1) and counsel's mistakes should not be visited on the client
- The discretion to set aside an ex parte dismissal exists to avoid injustice from accident, inadvertence or excusable mistake, not to assist deliberate obstruction
Court orders
#- 1.The Notice of Motion application dated 4th November, 2024 is allowed in its entirety
- 2.The orders and proceedings of 4th November 2024 dismissing the Plaintiffs' case are set aside to enable the Plaintiffs to present their case
- 3.The Plaintiffs' Advocates to pay thrown away costs of Kshs. 10,000.00 each to the 1st and 2nd Defendants' Advocates respectively before the next Court session
- 4.Matter to be fixed for mention on 24th March, 2025 to fix a fresh hearing date before Hon. Justice Olola
- 5.Costs of the application to be in cause
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Sections 3, 3A & 63(e) of the Civil Procedure Act and Order 51 Rule 1 of the Civil Procedure Rules, 2010
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.
That the Notice of Motion application dated 4th November, 2024 be and is found to have merit and the same is hereby allowed in its entirety.
That this Honourable Court be and is hereby pleased to set aside the orders and proceedings of the 4th November 2024, where the Plaintifis case was dismissed and closed without the Plaintifis being heard to enable the Plaintifis to present their caser as required.
That the Plaintifis' Advocates to pay a thrown away costs of Kenya Shillings ten Thousand (Kshs. 10, 000.00/=) each to the 1st and 2nd Defendants Advocates respectively before the next Court session.
A bona fide mistake that is not unreasonable is a suficient excuse within the meaning of Order 12 Rule 3(1) of the Civil Procedure Rules, and the mistakes of counsel ought not be visited upon the client.
The Rules of Natural Justice require that the court must not necessarily drive any litigant from the seat of justice without a hearing, however weak his or her case may be.
Issues in the judgment
#The court inconsistently cites Order 12 Rule 3 as the basis for reinstatement in one passage and Order 10 Rule 11 in another
Section 27(1) on costs is attributed to 'Civil Procedure Rules Cap. 21' instead of the Civil Procedure Act
The parties' names are given only for the Plaintiffs; the 1st and 2nd Defendants are not named in the ruling
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mtile & 2 others v Mwamburi & another (Land Case 62 of 2019) [2025] KEELC 1105 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1105/eng@2025-03-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.