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ELCDismissed· [2017] KEELC 1854 (KLR)

Kiloko M. Ndeti & 5 others v Kivuo Ndeti & another [2017] KEELC 1854 (KLR)

Environment and Land Court
22 September 2017
OAO. A. Angote
339 words in judgment
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The bottom line

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A Kenyan land court refused to revive a dismissed suit because the claimant could not explain why neither they nor their advocate showed up in court.

What this practically means

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Executive summary

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The Plaintiffs filed an application dated 28th February 2017 seeking to set aside orders of 22nd February 2017 by which the court dismissed their earlier application dated 22nd July 2013 for want of prosecution. The application was grounded on the contention that the Plaintiffs had actively prosecuted the suit, that their non-attendance on 22nd February 2017 was an inadvertent mistake of the advocate, that the application was filed without delay, and that an advocate's mistake should not be visited on the client. Counsel deponed that he was before the High Court in Nairobi in Civil Case No. 717 of 2007 and 287 of 2015 and had sent an associate, who allegedly found the matter already called out and dismissed. The application was unopposed by the Respondents. The court observed from the record that on the hearing date neither the Plaintiffs nor their advocate was in court and the application was dismissed suo moto for want of prosecution. The court noted that the associate said to have been sent to court did not depose to explain why he arrived after 9.00 a.m., if at all. Holding that no good reason for non-attendance had been established, the Judge declined to set aside the dismissal orders and dismissed the application dated 28th February 2017 with no order as to costs. Judgment was delivered in Machakos on 22nd September 2017 by O. A. Angote, Judge.

Key legal issues

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01

Whether the mistake or absence of an advocate warrants setting aside dismissal orders

Holding

The court declined to set aside the dismissal orders because the Plaintiffs failed to provide a good reason for their non-attendance when the matter was called out

Reasoning

The matter was fixed for hearing on 22nd February 2017, and neither the Plaintiffs nor their advocate attended; the court dismissed the application suo moto for want of prosecution. Although counsel deponed that he was before the High Court in Nairobi and sent an associate, the associate did not depose to explain his late arrival, if any. In the absence of a good reason, the court declined to exercise its discretion in favour of setting aside the dismissal.

p. 2

Legal principles established

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  • A party seeking to set aside dismissal orders must give a good reason for non-attendance; an uncorroborated claim that an associate was sent to court does not suffice

Court orders

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  1. 1.The Application dated 28th February 2017 is dismissed with no order as to costs
Jurisdiction invoked
Inherent power of the court to set aside its own orders; not expressly stated in the judgment

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, "Kiloko M. Ndeti & 5 others v Kivuo Ndeti & another [2017] KEELC 1854 (KLR)", Case Analysis (2017). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1854/eng@2017-09-22

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