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ELCDismissedNotice of Motion dated 4th November 2016 in Mombasa ELC suit filed 11th April 2011· [2017] KEELC 2362 (KLR)

Ernest Mungai Kamau & another v Kenya Railways Corporation & another [2017] KEELC 2362 (KLR)

Environment and Land Court
3 April 2017
2,016 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The plaintiffs moved the court by Notice of Motion dated 4th November 2016 under Sections 1A, 1B, 3A and 63 of the Civil Procedure Act and Order 12 Rule 7 of the Civil Procedure Rules, seeking to set aside an order made on 24th June 2014 dismissing their suit for non-attendance under Order 12 Rule 3. The application was supported by an affidavit of Enock Tuitoek, a director of the 2nd plaintiff, who explained that the 1st plaintiff had been the contact person with the plaintiffs' former advocates, Onindo Onindo and Associates, and that neither the advocates nor the 1st plaintiff informed the 2nd plaintiff of the hearing date or the dismissal. The defendants opposed, citing inordinate and unexplained delay of about 2½ years and noting that the suit property had been transferred to Hardware and General Stores Limited, which had filed a separate suit, Mombasa ELC No. 83 of 2014. The court found that no explanation existed for the period from June 2014 to August 2016, that the former advocates gave no affidavit explaining their failure to attend, and that their failure to do so, despite having fixed the hearing date, suggested there was no reason for their absence. Applying the principles in Shah v Mbogo, the court held that the inherent powers should not aid an indolent litigant, found the plaintiffs guilty of laches, and dismissed the application with costs to the respondents on 3rd April 2017.

Key legal issues

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01

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

Holding

The discretion was declined; the application lacked merit because of inordinate delay and absence of excusable mistake or explanation for the non-attendance

Reasoning

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.

p. 4
02

Whether the overriding objective and inherent powers of the court avail a litigant guilty of delay

Holding

No; the overriding objective does not come to the aid of indolent litigants

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.The plaintiffs' Notice of Motion dated 4th November 2016 is dismissed
  2. 2.Costs of the application to the respondents

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A, 63
  • Civil Procedure RulesOrder 12 Rule 3
  • Civil Procedure RulesOrder 12 Rule 7

Cases cited (3)

  • Shah vs Mbogo
    (1967) EA 116
  • JOSEPH NJUGUNA MUNIU –VS- MEDICINO GIOVANNI
    (1998) eKLR
  • PAULA WALETI MUCHINA –VS- HENRY WANJOHI MUCHINA
    (2003) eKLR
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

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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

Cite this brief

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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.