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ELCAllowedKisumu ELC No. 61 of 2017 (formerly Kisumu HCCC No. 79 of 2012)· [2018] KEELC 141 (KLR)

Agricultural Finance Corporation v George Ochieng Ojwando & 6 others [2018] KEELC 141 (KLR)

Environment and Land Court
5 December 2018
SKS.M. Kibunja
1,470 words in judgment
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The bottom line

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The court reinstated a lender's land case dismissed for missed hearing, but only on condition it pays the defendants' costs within thirty days.

What this practically means

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Executive summary

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The Plaintiff, Agricultural Finance Corporation, moved the court by notice of motion dated 10th May 2018 seeking setting aside of the order of 11th April 2018 dismissing its suit for non-attendance, and reinstatement of the suit. The ground advanced was that counsel inadvertently diarized the hearing for 11th May 2018 instead of 11th April 2018. The Defendants opposed through their counsel, Peter Daniel Onyango, contending that counsel had clearly recorded the correct date when it was taken by consent on 17th October 2017, that the annexed diary extracts did not concern this suit, and that the non-attendance was deliberate. The court framed three issues: whether a reasonable explanation was given, whether the discretion to set aside should be exercised, and costs. It found the diary extracts did not reference this suit (ELC No. 61 of 2017 or former HCCC No. 79 of 2012), and that the Plaintiff had no good cause for absence. Nevertheless, because the parties in the diarized case appeared similar, and applying the overriding objective under Sections 1A and 1B of the Civil Procedure Act, and the principle in Chemwolo v Kubende that correctable blunders without prejudice should be remedied by opting for the lower risk of injustice, the court exercised its discretion under Order 12 Rule 7 in the Plaintiff's favour. The application was filed within about one month and without undue delay. The dismissal order was set aside and the suit reinstated, conditional upon payment within thirty days of thrown away costs of Kshs. 20,000/= and the outstanding court adjournment fee, failing which the dismissal would be automatically reinstated.

Key legal issues

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01

Whether the Plaintiff gave a reasonable explanation for non-attendance on 11th April 2018

Holding

The court found the explanation doubtful but excusable in the circumstances

Reasoning

The diary copies annexed did not show this suit; the diary for 11th May 2018 listed only Kisumu CMCC 207 of 2018 and Kisumu HCCC No. 689 of 2009 involving similar parties. However, because the parties in the diarized case appeared similar to those in this suit, the court found that the overriding objective under Sections 1A and 1B of the Civil Procedure Act would be better served by exercising discretion in the Plaintiff's favour.

p. 2
02

Whether the dismissal order should be set aside and the suit reinstated

Holding

Yes, the dismissal was set aside on terms, the application having been filed without undue delay within about one month of the dismissal

Reasoning

Order 12 Rule 7 confers discretion to set aside a dismissal upon such terms as may be just. The court noted that blunders by parties and counsel will continue to be made, and that where such errors can be corrected without prejudice to the other party, the lower rather than the higher risk of injustice should be preferred. The application was filed promptly, and the Defendants, who had attended ready for hearing, were compensated with thrown away costs of Kshs. 20,000/= plus the outstanding court adjournment fee.

p. 2

Legal principles established

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  • Where blunders or errors by parties or counsel can be corrected without prejudice to the other party, the court should opt for the lower rather than the higher risk of injustice in exercising its discretion to set aside a dismissal.
  • A suit may be dismissed for non-attendance where only the defendant attends and admits no part of the claim, except for good cause recorded by the court.

Court orders

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  1. 1.The order of dismissal of the Plaintiff's suit of 11th April 2018 for non-attendance is set aside and the suit reinstated for hearing on a date to be fixed, on condition that the Plaintiff pays thrown away costs of Kshs. 20,000/= and the court adjournment fee within thirty (30) days
  2. 2.Should the Plaintiff fail or neglect to comply with the payment timeline, order 5(a) shall lapse and the dismissal order of 11th April 2018 shall be reinstated automatically

Authorities

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Legislation

  • Civil Procedure RulesOrder 12 Rule 3(1)
  • Civil Procedure RulesOrder 12 Rule 7
  • Civil Procedure ActSection 1A
  • Civil Procedure ActSection 1B

Cases cited (2)

  • Phillip K. Chemwolo & Another vs Augustine Kubende
    [1986] KLR 492; (1982-88) IKAR, 1036; [1986-1989] EA, 74
  • Lucy Bosire V. Kehancha Divisional Land Dispute Tribunal & 2 Others
    [2013] eKLR
Jurisdiction invoked
Order 12 Rule 7 of the Civil Procedure Rules, discretionary power to set aside a dismissal order

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, "Agricultural Finance Corporation v George Ochieng Ojwando & 6 others [2018] KEELC 141 (KLR)", Case Analysis (2018). Kisumu ELC No. 61 of 2017 (formerly Kisumu HCCC No. 79 of 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/141/eng@2018-12-05

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