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ELCDismissedNotice of Motion dated 22nd September 2017 (Judicial Review Motion dated 25th May 2010)· [2018] KEELC 937 (KLR)

M’Erimba M’Aruchiu George v Senior Principal Magistrate Maua & 2 others [2018] KEELC 937 (KLR)

Environment and Land Court
8 November 2018
LMLucy N. Mbugua
1,439 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, ruling that litigants must actively follow up their own cases and cannot blame everything on their lawyer.

What this practically means

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Executive summary

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This was a Notice of Motion dated 22nd September 2017 seeking reinstatement of a Judicial Review Motion filed on 25th May 2010, which had been dismissed on 30th June 2017 for non-attendance and want of prosecution. The applicant, represented initially by counsel who allegedly failed to inform him of the notice to show cause date, sought reinstatement so the suit could be heard on its merits, citing his advanced age (over 80) and ill health, and relying on the principle that a litigant should not be punished for his advocate's mistakes. The 1st respondent opposed, contending the applicant had not come to court with clean hands, had not justified his absence with medical evidence, and that the application was an afterthought aimed at denying the 2nd respondent the fruits of judgment. The court framed a single issue: whether to reinstate the suit. Perusing the entire record, Mbugua J noted that after 11th December 2012, when the 2nd respondent was reported dead and a guardian ad litem was sought for the 3rd respondent, nothing was done for about two and a half years. Applying the principles that the power to excuse counsel's mistake is not automatic and that a case belongs to the litigant, the court observed that the applicant had shown no personal steps to follow up his suit. Concluding there was no prospect of the suit being prosecuted timeously, and that the suit against the 2nd respondent had abated, the court found the application unmeritorious and dismissed it with costs to the 1st respondent.

Key legal issues

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01

Whether the suit dismissed for non-attendance and want of prosecution should be reinstated

Holding

The application for reinstatement is unmeritorious and dismissed with costs.

Reasoning

The court reviewed the entire record and found the applicant had done nothing to prosecute the suit since 11th December 2012, over two and a half years of inactivity. While courts may excuse a mistake of counsel, that discretion is not automatic and counsel owes duties to the court and the other side. The applicant, who blamed his advocate, demonstrated no steps of his own to follow up the case, such as writing to inquire about its status. The suit against the 2nd Respondent had abated, and there was no prospect of timely prosecution, so reinstatement would serve no purpose.

p. 2

Legal principles established

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  • The court's power to excuse a mistake of counsel is not automatic; counsel owes duties to the client, the court and the other side.
  • A case belongs to the litigant, not the advocate; a litigant must pursue prosecution of the case and cannot rely solely on counsel's mistake.

Court orders

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  1. 1.The Notice of Motion dated 22nd September 2017 seeking reinstatement of the suit is dismissed
  2. 2.Costs of the application to the 1st Respondent
Jurisdiction invoked
Order 17 Rule 2 of the Civil Procedure Rules, Article 159(2)(d) and 50(1) of the Constitution and all other enabling provisions of law

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, "M’Erimba M’Aruchiu George v Senior Principal Magistrate Maua & 2 others [2018] KEELC 937 (KLR)", Case Analysis (2018). Notice of Motion dated 22nd September 2017 (Judicial Review Motion dated 25th May 2010). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/937/eng@2018-11-08

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