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ELCAllowedNot stated in the judgment· [2017] KEELC 764 (KLR)

Daniel Muthuri & another v M’ikiara Karigi [2017] KEELC 764 (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 application because the client was diligent and in court, ruling a lawyer's mistake shouldn't punish the client.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Meru on a Notice of Motion dated 30th May 2017 in which the plaintiff/applicant sought to set aside orders made on 29th May 2017 by the Honourable Lady Justice L.N. Mbugua dismissing the plaintiff's application filed on 16th December 2016, and to reinstate that application for hearing on the merits, together with directions on an early hearing date and costs. The applicant argued that the application raised weighty issues of law and fact, that it was filed just one day after the dismissal, that his advocate rather than he was absent on 29th May 2017, and that under Article 159 of the Constitution and Sections 1A and 1B of the Civil Procedure Act the mistake of counsel ought not to be visited upon him. He relied on CMC Holdings Ltd v Nzioki and Lucy Bosire v Kehancha Div. Land Dispute Tribunal (citing Philip Chemwolo v Augustine Kubende) on excusable mistake. The respondent opposed, giving a history of the family dispute and contending that no sufficient reasons were advanced for counsel's absence and that the underlying application sought to commit him to civil jail. The court held that the applicant had been diligent in filing the reinstatement application promptly, declined to consider the merits of the underlying application, and found it a proper case to exercise discretion in the applicant's favour since the mistake of counsel should not be visited upon an applicant who was himself in court. The application was allowed with costs to the respondent.

Key legal issues

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01

Whether an application dismissed for non-attendance by counsel ought to be reinstated

Holding

The court exercised its discretion in favour of the applicant, finding the application reinstatement-ready because it was filed promptly (a day after dismissal) and counsel's absence was an excusable mistake not attributable to the applicant.

Reasoning

The court noted the applicant's diligence in filing the reinstatement application just one day after the dismissal, which demonstrated seriousness. It declined to delve into the merits of the underlying application of 5th December 2016, holding that was not the issue before it. Relying on the cited authorities on excusable mistake and the overriding objective, it found it just to reinstate the application so it could be heard on its merits, but awarded costs to the Respondent.

p. 2

Legal principles established

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  • The mistake of counsel should not be visited upon a litigant who was himself present or diligent, where the application to reinstate is filed promptly.

Court orders

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  1. 1.The orders of the Honourable Lady Justice L.N. Mbugua made on 29th May 2017 are set aside and the plaintiff/applicant's application filed on 16th December 2016 is reinstated
  2. 2.Costs of the application of 30th May 2017 to the Respondent

Authorities

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Legislation

  • Constitution of KenyaArticle 159
  • Civil Procedure ActSections 1A and 1B (also referred to 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 at 1042; [1986-1989] EA 74
Jurisdiction invoked
Inherent discretion of the Court under Article 159 of the Constitution and Sections 1A and 1B of the Civil Procedure Act

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 & another v M’ikiara Karigi [2017] KEELC 764 (KLR)", Case Analysis (2017). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/764/eng@2017-12-06

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