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ELCAllowedEnvironment and Land Case No. 515 of 2013 (Miscellaneous Application)· [2016] KEELC 782 (KLR)

Teresa Chebichii Ruto v Talalei Kiptenai [2016] KEELC 782 (KLR)

Environment and Land Court
22 June 2016
AOANTONY OMBWAYO
2,133 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court reinstated a case dismissed when a lawyer missed court after an accident, prioritising justice over procedure.

What this practically means

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Executive summary

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The applicant moved the Environment and Land Court at Eldoret to set aside the court's order of 3rd June 2016 dismissing her application dated 28th May 2016 for non-attendance. The dismissed application had sought demarcation of 36 acres granted to the applicant and her siblings in a ruling of 27th May 2016 pending appeal in Environment and Land Case No. 515 of 2013. Counsel for the applicant deponed that she suffered a bathroom accident on the morning of the hearing and, having forgotten her phone, could not arrange for her brief to be held. The respondent opposed the reinstatement, arguing the application was brought under the wrong provisions of law, was an abuse of process, and that inherent powers could not be invoked where specific provisions exist; he also contended that the late filing of the Notice of Appointment by the firm of Gicheru & Company Advocates did not invalidate the dismissal. The court found the accident uncontroverted, held the application was filed timeously and not frivolous, and applied the overriding objective of the Environment and Land Court Act and Article 159(2)(d) of the Constitution to cure the procedural defects of both parties. Relying on established discretion principles from Patel, Shah v Mbogo and related authorities, the court allowed the application with no order as to costs and directed that the application dated 28th May 2016 be set down for hearing inter-partes on merit.

Key legal issues

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01

Whether failure to attend court due to counsel's accident justifies setting aside dismissal

Holding

The court found the explanation credible and uncontroverted and allowed the application

Reasoning

The respondent filed no affidavit to controvert counsel's accident; the application was filed promptly; the court relied on Patel v EA Cargo Handling Services and Shah v Mbogo on the free and wide discretion to relieve against accident, inadvertence or excusable mistake. The main concern of the court is to do justice to the parties.

p. 4
02

Whether the application was defective for citing wrong provisions of law

Holding

Omission or misquotation of the legal provision was not fatal and did not prejudice the respondent

Reasoning

The court held that dismissing the application on such a technicality would offend the overriding objective of the Environment and Land Court Act, which is to enable just, expeditious, proportionate and accessible resolution of disputes. Article 159(2)(d) applied to cure the procedural defects of both parties.

p. 2

Legal principles established

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  • A mistake of counsel should not be visited upon an innocent litigant
  • Article 159(2)(d) requires courts not to pay undue attention to procedure at the expense of substantive justice

Court orders

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  1. 1.The order issued on 3.6.2016 dismissing the application dated 28.5.2016 is set aside
  2. 2.The application dated 28th May 2016 to be set down for hearing inter-partes on merit
  3. 3.Application allowed with no order as to costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159(2)(d)
  • Environment and Land Court Actoverriding objective
  • Order IX rule 20 (civil procedure rules)rule 20

Cases cited (8)

  • Trust Bank Limited v Amin Company Ltd & Another
    (2000) KLR 164
  • Phillip Chemowolo & Another v Augustine Kubede
    (1892-88) KAR 103
  • Belinda Murai & Others v Amos Wainaina
    (1978) LLR 2782 (CALL)
  • Raila Odinga v. I.E.B.C & others
    (2013) eKLR
  • Patel v EA Cargo Handling Services Ltd
    [1974] EA 75
  • Shah v Mbogo
    [1967] EA 116
  • Mbogo v Shah
    [1968] EA 93
  • Shabir Din v Ram Parkash Anand
    (1955) 22 EACA 48
Jurisdiction invoked
Inherent powers of the court and Article 159(2)(d) of the Constitution of Kenya, 2010

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, "Teresa Chebichii Ruto v Talalei Kiptenai [2016] KEELC 782 (KLR)", Case Analysis (2016). Environment and Land Case No. 515 of 2013 (Miscellaneous Application). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/782/eng@2016-06-22

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