Dickson K. Yatich & 4 others v Obadiah K. Kipkorir & 5 others [2018] KEELC 378 (KLR)
The bottom line
#A Kenyan land court reinstated a dismissed property suit but only on condition the plaintiffs pay Kshs. 25,000 in costs within 30 days.
What this practically means
#Executive summary
#Key legal issues
#Whether mistake of counsel warranted reinstatement of the dismissed suit
Yes - though the true mistake was the firm's failure to act on the notice of dismissal rather than the account given in the affidavit, it would be harsh to punish the plaintiffs for their advocates' inaction
The court found inconsistencies and gaps in the advocates' explanation: it was not said who received the notice, to whom it was handed, when the departing advocate left, or when the plaintiffs enquired about their file. Despite being unconvinced by the stated reasons, the court noted the plaintiffs had filed their list of documents in 2016, demonstrating interest, and concluded they were let down by their advocates. Punishing clients for their advocates' dilatoriness was held to be harsh, so reinstatement was granted in the court's discretion, conditioned on throw away costs.
On what terms reinstatement should issue
Reinstatement conditional on payment of Kshs. 25,000/= throw away costs within 30 days, with automatic dismissal if unpaid
The 1st – 4th defendants duly attended the notice to show cause date and had every reason to resist the reinstatement application, so they deserved throw away costs. The court exercised its discretion to quantify these at Kshs. 25,000/= and built in a self-executing mechanism: non-payment within 30 days means the case stands dismissed; payment means the case is reinstated to proceed on its merits.
Legal principles established
#- A party should not be punished for the tardy and dilatory conduct of its advocates on record where the advocates received the notice of dismissal and did nothing about it
- Reinstatement may be granted in the court's discretion subject to throw away costs, with a self-executing dismissal if costs are unpaid
Court orders
#- 1.Suit reinstated subject to payment of throw away costs of Kshs. 25,000/= to the 1st – 4th defendants
- 2.Costs to be paid within 30 days; failing payment, the case shall stand dismissed; if paid, the case proceeds on merits
- Jurisdiction invoked
- Sections 1A, 1B and 3A of the Civil Procedure Act, Cap 21; Order 12 Rule 7 and Order 17 Rule 3 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Dickson K. Yatich & 4 others v Obadiah K. Kipkorir & 5 others [2018] KEELC 378 (KLR)", Case Analysis (2018). Not stated in the judgment (suit over Solai/Ndungiri Block 1/232 and 235; application dated 7 May 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/378/eng@2018-11-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.