M’Mwirichia M’Angare v M’Ibiri M’Bogori & others; Standard Chartered Bank of Kenya Ltd (Interested Party) [2018] KEELC 585 (KLR)
The bottom line
#A Kenyan court refused to re-open a defendant's case after 16 years of delay, ruling that a litigant cannot simply blame their lawyer for a failed case.
What this practically means
#Executive summary
#Key legal issues
#Whether the mistakes of an advocate should be visited upon the client so as to justify re-opening a closed defence case
No; the discretion is not automatic and a litigant who declines to testify when given the opportunity cannot blame counsel
The court associated itself with authorities holding that a case is owned by the litigant, who must follow up its progress, and that counsel's mistake will not per se move the court to exercise its discretion in the litigant's favour. The defendant was present on 25.4.2018 and was offered the chance to testify but refused, so he did not mitigate his position.
The application of the oxygen principle/overriding objective to inordinate delay
Allowing the re-opening of a 16-year-old case, where the original plaintiff died before finalization, would defeat the overriding objective of expeditious disposal
Sections 1A and 1B of the Civil Procedure Act require parties and advocates to assist the court and comply with its directions; justice delayed is justice denied. The court noted prior final adjournment orders never complied with, and held that backlog cases erode public confidence in the judiciary.
Legal principles established
#- A civil case belongs to the litigant and not the advocate; a litigant cannot merely blame counsel's mistake to obtain discretionary relief
- The court's discretion to excuse an advocate's mistake is not exercised automatically
- The oxygen principle under sections 1A and 1B of the Civil Procedure Act cuts both ways and obliges parties to assist the court in furthering the overriding objective
Court orders
#- 1.The application dated 3.5.2018 seeking to re-open the defence case is dismissed
- 2.Costs of the application awarded to the respondent/plaintiff
- 3.Parties directed to file their submissions forthwith
- Jurisdiction invoked
- Inherent jurisdiction and discretion under sections 1A and 1B of the Civil Procedure Act (overriding objective/oxygen principles)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "M’Mwirichia M’Angare v M’Ibiri M’Bogori & others; Standard Chartered Bank of Kenya Ltd (Interested Party) [2018] KEELC 585 (KLR)", Case Analysis (2018). Application dated 3.5.2018 (suit filed in 2002). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/585/eng@2018-11-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.