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ELCPartially AllowedNotice of Motion dated 30th May, 2017· [2017] KEELC 741 (KLR)

Daniel Muthuri & Benson Kinoti v M’Ikiara Karigi [2017] KEELC 741 (KLR)

Environment and Land Court
6 December 2017
LML. N. MBUGUA
840 words in judgment
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The bottom line

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Kenya's Environment and Land Court reinstated a dismissed land case, ruling that a lawyer's absence should not punish the client who showed up.

What this practically means

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Executive summary

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This was a ruling on a Notice of Motion dated 30th May 2017 in which the plaintiff/applicant sought to set aside orders made on 29th May 2017 dismissing his earlier application (filed 16th December 2016) for non-attendance by his counsel, and to have that application reinstated and given an early hearing date. The applicant argued that the application raised weighty issues, that he was present in court on 29th May 2017 even though his advocate was not, that the mistake of counsel should not be visited upon him, and that he filed the reinstatement application just one day after the dismissal. He relied on CMC Holdings Ltd v Nzioki and Lucy Bosire v Kehancha Divisional Land Dispute Tribunal, urging the overriding objective under Sections 1A and 1B of the Civil Procedure Act. The respondent opposed, giving a history of the dispute and arguing that the underlying 5.12.16 application sought to commit him to civil jail, and that no sufficient reasons were given for counsel's absence. The court held that the applicant had been diligent, that it was improper to delve into the merits of the underlying application, and that counsel's mistake should not be visited upon the applicant who was actually in court. The court exercised its discretion in the applicant's favour, allowed the application dated 30th May 2017, but awarded costs of that application to the respondent.

Key legal issues

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01

Whether dismissal for non-attendance should be set aside

Holding

Yes - the dismissal orders of 29.5.2017 were set aside and the underlying application reinstated

Reasoning

The court found the applicant diligent, having filed the reinstatement application only a day after the dismissal. Counsel's absence on 29.5.2017 was an excusable mistake, and the applicant himself was in court. Relying on CMC Holdings Ltd v Nzioki and Lucy Bosire, the court held that blunders by advocates should not penalise litigants by denying them a hearing on the merits, and invoked the overriding objective under Sections 1A and 1B of the Civil Procedure Act.

p. 2
02

Whether the court should consider the merits of the underlying application

Holding

No - the merits of the application of 5.12.16 were irrelevant to the reinstatement application

Reasoning

The respondent had delved into the substance of the 5.12.16 application, arguing it sought to commit him to civil jail. The court declined to engage, holding that the reinstatement motion only concerned whether the dismissal should be set aside, not the merits of the underlying application, which would be ventilated at its hearing.

p. 2

Legal principles established

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  • A litigant should not be driven out of the seat of justice on account of an excusable mistake by his advocate
  • The mistake of counsel ought not to be visited upon a client who was present in court
  • Diligence in promptly applying after dismissal supports exercise of discretion to reinstate

Court orders

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  1. 1.The application dated 30th May 2017 is allowed with costs to the Respondent
  2. 2.The orders of 29th May 2017 are set aside and the plaintiff's application filed on 16th December 2016 is reinstated

Authorities

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Legislation

  • Constitution of KenyaArticle 159
  • Civil Procedure ActSections 1A and 1B (also cited as 1A and 2A)

Cases cited (3)

  • CMC HOLDINGS LIMITED VS NZIOKI
    [2004] 1 KLR 173
  • LUCY BOSIRE VS KEHANCHA DIV. LAND DISPUTE TRIBUNAL & 2 OTHERS
  • Philip Keipto Chemwolo & Another Vs Augustine Kubende
    [1986] KLR 492; [1982-88] 1 KAR 1036; [1986-1989] EA 74
Jurisdiction invoked
Article 159 of the Constitution; Sections 1A and 1B of the Civil Procedure Act (overriding objective)

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, "Daniel Muthuri & Benson Kinoti v M’Ikiara Karigi [2017] KEELC 741 (KLR)", Case Analysis (2017). Notice of Motion dated 30th May, 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/741/eng@2017-12-06

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