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ELCAllowed· [2018] KEELC 870 (KLR)

David Mburu Gibson & another both t/a Nemka Commercial Agencies v National Social Security Fund (NSSF) & 8 others [2018] KEELC 870 (KLR)

Environment and Land Court
7 November 2018
LKL. Komingoi
670 words in judgment
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The bottom line

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Kenya's Environment and Land Court reinstated a land suit dismissed when the plaintiff's lawyer arrived late, ruling honest mistakes shouldn't cost you your day in court.

What this practically means

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Executive summary

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This was a ruling on a Notice of Motion dated 3rd November 2016 in which the plaintiff/applicant sought vacation or setting aside of an order made the same day dismissing the suit for non-attendance, together with costs of the application. The application was supported by the affidavit of Jeremy Njenga, the plaintiff's advocate, and opposed by replying affidavits sworn by Daniel Ngaca Gacugia for the defendant and by Anthony Maina Muhoro for the 4th interested party on his own behalf and that of the other interested parties. The court directed canvassing by written submissions, but only the plaintiff's submissions were on record. L. Komingoi J framed a single issue: whether the application was merited. Examining the court file, the judge found that the plaintiff's advocate had arrived in court at 9.15 am and his presence was noted by Judge Gitumbi, and the matter appeared as no. 3 on the day's cause list, showing that the failure to attend on time was not deliberate but occasioned by factors beyond the advocate's control. Applying Grace Wanjiku Ndegwa v Highlands Mineral Water Company Limited and Philip Chemwolo v Augustine Kubende, the court held that mistakes should not deprive a party of a hearing on the merit absent fraud or intention to overreach. Finding the plaintiff would suffer great prejudice and the defendants none, the court set aside the dismissal, reinstated the suit, awarded throw-away costs of Kshs 10,000 payable within thirty days, and ordered costs of the application to be in the cause.

Key legal issues

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Whether the suit dismissed for non-attendance should be reinstated

Holding

The application was merited; the advocate's late arrival was not deliberate, the plaintiff would suffer great prejudice if not reinstated, and no prejudice would be occasioned to the defendants.

Reasoning

The court perused the file and found the plaintiff's advocate arrived at 9.15 am and his presence was noted, with the matter listed as no. 3 on the cause list. Guided by Grace Wanjiku Ndegwa and Philip Chemwolo, the court held that mistakes should not shut out a party from a hearing on merit where there is no fraud or intention to overreach. It found the non-attendance inadvertent and reinstated the suit on payment of throw-away costs.

p. 2

Legal principles established

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  • Where an advocate's failure to attend court is not deliberate but occasioned by factors beyond his control, a dismissal order for non-attendance should be set aside so the suit can be heard on merit.

Court orders

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  1. 1.The orders made on 3rd November 2016 dismissing the suit for non-attendance are vacated and/or set aside and the suit is reinstated
  2. 2.The plaintiff/applicant to pay the defendants/respondents throw away costs of Kshs 10,000 within thirty (30) days from the date hereof
  3. 3.The costs of this application be in the cause

Authorities

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Cases cited (2)

  • Grace Wanjiku Ndegwa vs Highlands Mineral Water Company Limited
    ELRC Cause No. 926 of 2013
  • Philip Chemwolo & Another Vs Augustine Kubende
    (1982-88) KAR 103
Jurisdiction invoked
Inherent power to vacate/set aside orders of dismissal for non-attendance and reinstate a suit (not expressly stated in the judgment)

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, "David Mburu Gibson & another both t/a Nemka Commercial Agencies v National Social Security Fund (NSSF) & 8 others [2018] KEELC 870 (KLR)", Case Analysis (2018). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/870/eng@2018-11-07

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