Kimata v Maloba & another
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the ELC Judge exercised her discretion judiciously in refusing to reinstate the suit under Order 12 rule 7
She did not; she fell into error by concluding the appellant's reasons were inexcusable when they were solid, and the appellate court interfered with her discretion.
The discretion under Order 12 Rule 7 exists to avoid injustice from inadvertent or excusable mistakes. The appellant gave satisfactory reasons: the applicant was deceased and needed substitution, a limited grant ad litem had been obtained, the suit was dismissed at a mention not a hearing, the respondents' counsel knew of the death but did not inform the court, and there was no inordinate delay. No prejudice to the respondents was demonstrated. The Judge therefore misdirected herself, warranting interference.
Whether a suit can properly be dismissed for non-attendance at a mention
No; a mention is not a hearing but an opportunity for the court to give directions, and dismissal at a mention was strange.
The court observed that a mention is a session for giving directions on steps to take before hearing, not a hearing per se, so it could not ground a dismissal for non-attendance. Counsel for the appellant argued the mention notice could not be converted into a hearing notice suo moto, a point the court found persuasive in the context of its equity-oriented approach.
Whether counsel's late arrival constituted dereliction of duty justifying dismissal
No; the greater dereliction was the respondents' counsel's failure, as an officer of the court, to inform the court of the applicant's death.
The court rejected the respondents' contention that the holding-brief counsel's lateness was dereliction of duty. It was unrebuted that the respondents' counsel knew the deceased applicant had died, having herself filed a suit seeking to stop his burial on the disputed land, yet allowed the suit to be dismissed without informing the court - a serious dereliction of the duty of candour.
Legal principles established
#- An appellate court may interfere with a lower court's exercise of discretion only where the judge misapprehended the facts, misdirected herself in law, took into account irrelevant matters, failed to consider relevant matters, or arrived at a plainly wrong decision.
- A suit should not be dismissed at a mention, which is not a hearing, and courts exist to do justice rather than to impose discipline on litigants for defaults.
- Unless there is grave injustice or prejudice likely to be occasioned by restoring a suit, parties should ordinarily be allowed their day in court; absent fraud or intention to overreach, defaults can be cured by payment of costs.
Court orders
#- 1.Appeal allowed
- 2.Ruling and order of Matheka J. dated 27th June 2018 set aside in entirety
- 3.Appellant awarded the costs of the appeal
- On appeal from
- Environment and Land Court of Kenya at Kakamega
- ELC Misc. No. 19 of 2017
- Jurisdiction invoked
- First appellate jurisdiction over the Environment and Land Court (Article 164(1)(a) Constitution, implied); appeal against exercise of discretion under Order 12 rule 7 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Ndegwa v Mwangi (Environment and Land Case E15 of 2023) [2025] KEELC 6732 (KLR)[2025] KEELC 6732 (KLR)7 Oct 2025
- Ndegwa v Mwangi (Environment and Land Case E15 of 2023) [2025] KEELC 6732 (KLR)[2025] KEELC 6732 (KLR)7 Oct 2025
Cite this brief
#Cite this brief
Caselaw, "Kimata v Maloba & another", Case Analysis (2022). Civil Appeal 103 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1114/eng@2022-10-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.