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ELCDismissedNotice of Motion dated 12th July 2017 (suit dismissed 30th March 2017)· [2018] KEELC 605 (KLR)

Paul Keroro Okemwa v Dora Nyakinyua Matandi & another [2018] KEELC 605 (KLR)

Environment and Land Court
23 November 2018
992 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to reinstate a dismissed land case because the lawyer's excuse for missing court lacked evidence and detail.

What this practically means

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Executive summary

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The suit was dismissed on 30th March 2017 for want of prosecution following a notice to show cause under Order 17 rule 2 of the Civil Procedure Rules, with no order as to costs, there being no appearance by any party. The plaintiff filed a Notice of Motion dated 12th July 2017 seeking reinstatement, supported by an affidavit of his counsel, Amos Andama, who deposed that he was held up in a hearing in Nakuru HCCC No. 152 of 2012 and urged the court not to visit a mistake of counsel on the client, stressing that the suit involved a claim for land. The 1st defendant opposed, deposing that the plaintiff had never prosecuted the suit nor explained the failure to do so. The court framed the question as whether valid reasons existed to justify setting aside an order made after due service, applying the Mbogoh & Another v Shah principles as restated in James Kanyiita Nderitu v Ghikas. It held the discretion to be unfettered but to be exercised judiciously, and found the explanation deficient: counsel gave no particulars of the other court, no cause list, and no reason why another advocate could not attend. Further, counsel did not depose to the reasons he would have given had he attended the notice to show cause, and his factual explanations in submissions were inadmissible as submissions are not evidence. The Motion was dismissed with costs to the defendants.

Key legal issues

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01

Whether to set aside the dismissal of the suit for want of prosecution

Holding

The application was dismissed because no valid reasons were shown for counsel's failure to attend court on the date the suit was dismissed.

Reasoning

The court applied the Mbogoh v Shah principles as restated in James Kanyiita Nderitu, noting the unfettered but judicious discretion. Counsel claimed to have been held up in another court but gave no details of the court, no cause list, and no reason why another advocate could not deputise. He also failed to give reasons in his affidavit why the suit should not be dismissed had he attended, and his explanations in submissions were not evidence.

p. 1

Legal principles established

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  • The court has an unfettered but judicious discretion whether or not to set aside an order of dismissal made after due service, guided by the principles in Mbogoh & Another v Shah.
  • Factual explanations offered only in submissions do not constitute evidence.

Court orders

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  1. 1.Notice of Motion dated 12th July 2017 dismissed with costs to the defendants

Authorities

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Legislation

  • Civil Procedure RulesOrder 10 rule 11
  • Civil Procedure RulesOrder 17 rule 2

Cases cited (5)

  • Mbogoh & Another v. Shah
    [1968] EA 93
  • James Kanyiita Nderitu & another v Marios Philotas Ghikas & another
    [2016] eKLR
  • Patel v. E.A. Cargo Handling Services Ltd
    (1975) EA 75
  • Chemwolo & Another v. Kubende
    [1986] KLR 492
  • CMC Holdings v. Nzioki
    [2004] 1 KLR 173
Jurisdiction invoked
Inherent discretion to reinstate a suit dismissed for want of prosecution under Order 17 rule 2 of the Civil Procedure Rules

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, "Paul Keroro Okemwa v Dora Nyakinyua Matandi & another [2018] KEELC 605 (KLR)", Case Analysis (2018). Notice of Motion dated 12th July 2017 (suit dismissed 30th March 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/605/eng@2018-11-23

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