Ernest Mungai Kamau & another v Kenya Railways Corporation & another [2017] KEELC 2362 (KLR)
The bottom line
#A Mombasa court refused to reinstate a land suit dismissed for non-attendance, because the plaintiffs waited two and a half years without explaining the delay.
What this practically means
#Executive summary
#Key legal issues
#Whether the discretionary power to set aside a dismissal for non-attendance under Order 12 Rule 7 should be exercised in favour of the plaintiffs
The discretion was declined; the application lacked merit because of inordinate delay and absence of excusable mistake or explanation for the non-attendance
The suit was dismissed under Order 12 Rule 3 after the plaintiffs and their counsel failed to attend the hearing on 24th June 2014. The application was filed about 2½ years later, with no explanation for the period between June 2014 and August 2016. No affidavit was sworn by the former advocates who fixed the hearing and failed to attend, and the 1st plaintiff gave no explanation. The court inferred there was no reason for the advocates' absence, noted the suit property had changed hands and was subject of another suit, and found the plaintiffs guilty of laches.
Whether the overriding objective and inherent powers of the court avail a litigant guilty of delay
No; the overriding objective does not come to the aid of indolent litigants
Sections 1A, 1B and 3A confer inherent powers that must be exercised judiciously, not to aid a litigant who has slept on rights. The delay of approximately two and a half years was unexplained, and counsel was aware of the matter but failed to attend court or obtain representation. The court therefore declined to exercise its discretion in the plaintiffs' favour.
Legal principles established
#- The court's inherent powers under sections 1A, 1B and 3A of the Civil Procedure Act should be exercised judiciously and not to aid an indolent litigant who has slept on his rights
- The discretion to set aside an ex-parte judgment or dismissal is meant to avoid injustice from accident, inadvertence or excusable mistake, not to assist one who obstructs or delays the course of justice
Court orders
#- 1.The plaintiffs' Notice of Motion dated 4th November 2016 is dismissed
- 2.Costs of the application to the respondents
- Jurisdiction invoked
- Sections 1A, 1B, 3A and 63 of the Civil Procedure Act and Order 12 Rule 7 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- In re Estate of the late Nzioka Sammy Musila (Deceased) - Sabina Nduku Sammy & Another v Esther Ndulu Mutuku & Mutuku Ngei[2020] KEHC 1686 (KLR)17 Nov 2020
Cite this brief
#Cite this brief
Caselaw, "Ernest Mungai Kamau & another v Kenya Railways Corporation & another [2017] KEELC 2362 (KLR)", Case Analysis (2017). Notice of Motion dated 4th November 2016 in Mombasa ELC suit filed 11th April 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2362/eng@2017-04-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.