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ELCPartially AllowedNot stated in the judgment (filed 21/9/2015 at Kitale High Court)· [2017] KEELC 3435 (KLR)

Sheila Kabole Mabwa v Joshua Ange’i [2017] KEELC 3435 (KLR)

High Court of Kenya
14 February 2017
MNM. Njoroge
662 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan High Court reinstated a dismissed land injunction application because the lawyer's delay was explained and the reinstatement request was filed the same day.

What this practically means

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Executive summary

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This ruling by M. Njoroge, Judge, delivered at Kitale on 14th February 2017, determined an application dated 31/1/2017 by which the applicant sought reinstatement of an earlier application dated 17/1/2017. The earlier application had sought an interim injunction and preservatory orders restraining the respondent and his agents from interfering with, constructing on, cultivating on or otherwise dealing with LR No. Trans-Nzoia/Kaisagat/247 pending hearing. On 31/1/2017, when the injunction application came up for hearing of a preliminary objection at Eldoret, the applicant was unrepresented and the court dismissed it for non-attendance. Counsel, James Oyundi Mukabi, filed the reinstatement application the same day, explaining by supporting affidavit that his lateness was due to traffic and the distance travelled from Vihiga County. He invoked Article 159(2)(b) of the Constitution, urging that justice be administered without undue regard to technicalities. The respondent opposed through grounds of opposition, describing the reinstatement application as belated, untimely, a mere afterthought and a clear abuse of court process. The court found no evidence supporting these objections, noting that the reinstatement application was filed the same day as the dismissal, before even one full day had elapsed, and that the delay had been reasonably explained. The court exercised its discretion in the applicant's favour, granted prayer (a) of the application dated 31/1/2017, ordered that the application dated 17/1/2017 be fixed for hearing, and awarded costs in the cause.

Key legal issues

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Whether the reinstatement application filed the same day as the dismissal was belated, an afterthought or an abuse of process

Holding

It was none of these; the promptness of filing on the same day and the explanation given justified reinstatement

Reasoning

The court examined the record and found that counsel for the applicant appeared before the court on 31/1/2017 and filed the reinstatement application the same day the earlier application was dismissed for non-attendance. Not even one full day had elapsed since the dismissal. Counsel's affidavit explained that his lateness was occasioned by traffic and the distance travelled from Vihiga County. The court found no basis for the respondent's grounds of opposition and exercised its discretion in the applicant's favour.

p. 2

Legal principles established

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  • Where a dismissal for non-attendance is occasioned by counsel's lateness with a reasonable explanation, and an application for reinstatement is filed on the same day, the dismissal should not stand and the matter should be heard on the merits, guided by Article 159(2)(b)

Court orders

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  1. 1.Prayer No. (a) in the application dated 31/1/2017 granted
  2. 2.The application dated 17/1/2017 to be fixed for hearing
  3. 3.Costs in the cause

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159(2)(b)
Jurisdiction invoked
Original civil jurisdiction of the High Court over land disputes (suit filed at Kitale High Court); inherent discretion in interlocutory applications

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, "Sheila Kabole Mabwa v Joshua Ange’i [2017] KEELC 3435 (KLR)", Case Analysis (2017). Not stated in the judgment (filed 21/9/2015 at Kitale High Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3435/eng@2017-02-14

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