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ELCAllowedNot stated in judgment (application dated 3rd November 2015)· [2016] KEELC 877 (KLR)

Joseph Macharia Njuguna v Pentecostal Holiness Centre Huruma [2016] KEELC 877 (KLR)

Environment and Land Court
20 May 2016
AOAntony Ombwayo
580 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 land suit dismissed for non-attendance, ruling a litigant cannot be punished for their advocate's mistakes.

What this practically means

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Executive summary

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The plaintiff, Josephat Macharia Njuguna, applied by notice of motion dated 3rd November 2015 for setting aside of orders dismissing his suit on 5th June 2015 for non-attendance, and for reinstatement of the suit for hearing on merit. He deposed that he had instructed the firm of M/s A.G.A. Etyang & Company, heard nothing for some time, and on visiting the firm on 22nd October 2015 learnt that his advocate, Mr Etyang, had left active practice to take up employment with the county government of Busia. A visit to the court registry revealed the suit had been dismissed with costs on 5th June 2015 for non-attendance. He contended he was condemned unheard contrary to natural justice and that no prejudice would befall the defendant. The defendant opposed, asserting the plaintiff caused most adjournments, gave no good reason for non-attendance, and that the plaintiff's inaction should not be visited on the defendant. The court held it was not contended that the plaintiff's counsel abandoned him when he sought employment with Busia County, and that no litigant should suffer for counsel's mistakes. The court found the dismissal punished the plaintiff without a hearing, that it possessed judicial discretion to set aside a dismissal in the interest of justice where the applicant came timeously, and that such discretion must not be exercised capriciously. The application was allowed: Chepseba Lagat and Company was permitted to come on record, the orders of 5th June 2015 were set aside, and the suit was reinstated for hearing on merit. No costs order was recorded.

Key legal issues

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01

Whether a suit dismissed for non-attendance should be reinstated where the plaintiff's advocate left active practice

Holding

The court reinstated the suit, holding the plaintiff should not be punished for his advocate's conduct and that dismissing the suit without hearing him offended natural justice

Reasoning

The court found the plaintiff had been represented by Mr Etyang throughout until the advocate left active practice for employment with the county government of Busia. The plaintiff was unaware of the hearing date and only learnt of the dismissal when visiting the advocate's office. To refuse reinstatement would be to punish the plaintiff without a hearing. The discretion to set aside a dismissal is judicial, must be exercised not capriciously, and the applicant came to court timeously.

p. 2

Legal principles established

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  • No litigant should be made to suffer for the mistakes of his counsel
  • The court has judicial discretion to set aside an order dismissing a suit in the interest of justice where the applicant comes to court timeously, exercised not capriciously

Court orders

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  1. 1.The application dated 3rd November 2015 is allowed
  2. 2.The firm of Chepseba Lagat and Company Advocate is allowed to come on record
  3. 3.The orders of the court made on 5th June 2015 are set aside
  4. 4.The suit is reinstated for hearing on merit
Jurisdiction invoked
Inherent judicial discretion of the court to set aside dismissal orders in the interest of justice

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, "Joseph Macharia Njuguna v Pentecostal Holiness Centre Huruma [2016] KEELC 877 (KLR)", Case Analysis (2016). Not stated in judgment (application dated 3rd November 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/877/eng@2016-05-20

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