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ELCAllowedNot stated in the judgment text provided· [2017] KEELC 2395 (KLR)

Jane Muchiku Kimemia v John Mwenja Ngumba [2017] KEELC 2395 (KLR)

Environment and Land Court
15 June 2017
EOE. O. OBAGA
754 words in judgment
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The bottom line

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A Kenyan court reinstated a land case dismissed because the applicant's lawyer briefly stepped out, ruling mistakes of counsel shouldn't punish innocent litigants.

What this practically means

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Executive summary

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The Plaintiff/Applicant filed a Notice of Motion dated 3rd September 2016 seeking a temporary injunction restraining the Defendant/Respondent from selling, letting, leasing or interfering with Plot No. 17 comprised in LR No. 74/12. Ex-parte interim orders were granted on 14th November 2016, with the application fixed for inter-partes hearing on 28th November 2016. On that date the applicant's counsel was absent; the application was dismissed with costs for non-attendance at the instance of the respondent's advocate. Later the same day the applicant filed an application seeking reinstatement and interim injunction orders, which was placed before Okong'o J who granted interim orders pending disposal. The applicant explained that an advocate holding brief had stepped out to arrange representation in the Anti-Corruption Court and returned to find the matter dismissed. The respondent opposed, contending that no good explanation had been given and that the ex-parte orders should not be reinstated. Obaga J framed a single issue: whether the applicant demonstrated a reasonable ground for the advocates' failure to attend. The court found the applicant's advocates had been keen to proceed, evidenced by a letter to the respondent's lawyers and a hearing notice served under protest. Holding the non-attendance excusable and adequately explained, the court held that mistakes of counsel should not be visited on an innocent litigant. The court allowed the application of 28th November 2016, reinstated the notice of motion dated 3rd September 2016, reinstated the interim orders until inter-partes hearing, and ordered costs of the application to be in the cause.

Key legal issues

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01

Whether non-attendance by the applicant's advocates on the hearing date was excusable

Holding

The non-attendance was excusable and adequately explained; the application dismissed for non-attendance was reinstated with the interim orders restored.

Reasoning

The applicant's advocates had shown keenness by writing to the respondent's lawyers about a further affidavit and serving a hearing notice. An advocate appeared but stepped out briefly to arrange counsel to hold his brief in the Anti-Corruption Court, returning to find the application dismissed. The court held this was not deliberate and exercised its discretion in favour of the applicant, reinstating the application and interim orders.

p. 2

Legal principles established

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  • Mistakes of counsel should not be visited on an innocent litigant where non-attendance is adequately explained and excusable.

Court orders

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  1. 1.The applicant's notice of motion dated 28th November 2016 is allowed
  2. 2.The notice of motion dated 3rd September 2016, dismissed on 28th November 2016, is reinstated
  3. 3.The interim orders granted on 14th November 2016 are reinstated and shall remain in force until inter-partes hearing of the notice of motion dated 3rd September 2016
  4. 4.The reinstated application to be set down for hearing expeditiously
  5. 5.Costs of the application shall be in the cause
Jurisdiction invoked
Inherent discretion of the court to reinstate a suit/application dismissed for non-attendance

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, "Jane Muchiku Kimemia v John Mwenja Ngumba [2017] KEELC 2395 (KLR)", Case Analysis (2017). Not stated in the judgment text provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2395/eng@2017-06-15

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