Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCAllowedCivil Suit No 39 of 2008· [2017] KEELC 250 (KLR)

Mohammed Salim Ali Mohamed Juma & another v Commissioner of Lands & 2 others [2017] KEELC 250 (KLR)

Environment and Land Court (court not expressly named in the judgment)
10 October 2017
LKL. Komingoi
956 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

#

Kenya's Environment and Land Court reinstated a suit dismissed for delays, holding an excusable mistake by a lawyer shouldn't cost plaintiffs their day in court.

What this practically means

#

Executive summary

#
This is a ruling on the plaintiffs' Notice of Motion dated 23rd March 2017, brought under Order 51 Rule 1 of the Civil Procedure Rules and sections 1A, 1B and 3A of the Civil Procedure Act. It sought setting aside of orders made on 27th February 2017 dismissing the suit for want of prosecution, reinstatement of the suit, and admission of the 1st plaintiff's affidavit as a response to the 3rd defendant's application dated 17th October 2016. The application was supported by affidavits of the plaintiffs' advocate, Miss Priscilla Onesmus, and the 1st plaintiff, and opposed by the 3rd defendant through a replying affidavit of its property manager, James Kariuki. The 3rd defendant argued the plaintiffs had shown lack of seriousness, with the matter dragging in court for nine years, and relied on Josephat Muthui Muli v Ezeetec Limited, Shah v Mbogo and Kenya Marine Contractor EPZ Limited. The plaintiffs relied on Richard Ncharpi Leiyagu v IEBC and Philip Keipto Chemwolo v Augustine Kubende, and invoked Article 159(2) of the Constitution. Justice L. Komingoi reviewed the court record, noted the suit was old and directions of 14/10/2015 had not been complied with, but accepted the advocate's detailed explanation. Applying the Shah v Mbogo principles, the court found the failure to respond was an excusable mistake which ought not be visited on the plaintiffs, and that no material showed deliberate obstruction. The court allowed the application, set aside the dismissal, reinstated the suit, admitted the affidavit, on condition the plaintiffs pay thrown away costs of Kshs.10,000/= within fourteen days. Leave to appeal was granted to the 3rd defendant upon payment.

Key legal issues

#
01

Whether the dismissal of the suit for want of prosecution should be set aside and the suit reinstated

Holding

The application was allowed; the dismissal orders were set aside, the suit reinstated, and the 1st plaintiff's affidavit admitted as a response, on condition of thrown away costs of Kshs.10,000/=.

Reasoning

The court applied the Shah v Mbogo principles on setting aside exparte orders. The advocate's affidavit gave a detailed account of events after service, and the court found the failure to respond was an excusable mistake not to be visited on the plaintiffs. No material showed deliberate obstruction or delay. The matter, though old, ought to be determined on its merits, and the plaintiffs were given an opportunity to present their case which they must not squander.

p. 2

Legal principles established

#
  • The court's discretion to set aside an exparte judgment or order is intended to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake or error, but not to assist a person who deliberately sought to obstruct or delay the course of justice.

Court orders

#
  1. 1.The orders made on 27th February 2017 dismissing the suit for want of prosecution be and are hereby set aside
  2. 2.The suit is reinstated
  3. 3.The 1st plaintiff's affidavit filed herewith is admitted as a response to the 3rd defendant's application dated 17th October 2016
  4. 4.On condition that the plaintiffs do pay to the 3rd defendant/respondent thrown away costs of Kshs.10,000/= to be paid within fourteen (14) days from the date hereof
  5. 5.Leave to appeal granted, to issue upon payment

Authorities

#

Legislation

  • Civil Procedure RulesOrder 51 Rule 1
  • Civil Procedure ActSections 1A, 1B, 3A
  • Constitution of KenyaArticle 159(2)

Cases cited (5)

  • Richard Ncharpi Leiyagu versus IEBC and 2 others
    Civil Appeal Number 18 of 2013
  • Philip Keipto Chemwolo and Another versus Augustine Kubende
    (1986) eKLR
  • Josephat Muthui Muli versus Ezeetec Limited
    (2014) eKLR
  • Shah versus Mbogo
    (1967) EA 116
  • Kenya Marine Contractor EPZ Limited versus Kenya Engineering Workers Union
    (2017) eKLR
Jurisdiction invoked
Order 51 Rule 1 of the Civil Procedure Rules, sections 1A, 1B and 3A of the Civil Procedure Act and all other enabling provisions of the law

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (5)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "Mohammed Salim Ali Mohamed Juma & another v Commissioner of Lands & 2 others [2017] KEELC 250 (KLR)", Case Analysis (2017). Civil Suit No 39 of 2008. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/250/eng@2017-10-10

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