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ELCDismissedJudicial Review Application dated 12th March 2018 (arising from Notice of Motion dated 24th April 2017)· [2018] KEELC 954 (KLR)

Republic v District Land Adjudication and Settlement Officer - Tigania East Sub County; Andrew Kinyua Mukiri (Interested Party); Teresina Karambu Joel (Suing as A Legal Representative of the Estate of Joel M’ Imiki M’ Etirikia) Ex Parte [2018] KEELC 954 (KLR)

Environment and Land Court
8 November 2018
1,368 words in judgment
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The bottom line

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The Environment and Land Court at Meru refused to revive a dismissed land case because the applicant gave no good reason for missing court deadlines.

What this practically means

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Executive summary

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This was a ruling of the Environment and Land Court at Meru on an application dated 12th March 2018 by the ex-parte applicant seeking to set aside orders of 21st February 2018 dismissing her substantive judicial review Notice of Motion dated 24th April 2017, and for leave to file an additional list of documents. The applicant explained that she had come into possession of important documents from the District Land Adjudication and Settlement Officer and that her advocate had been held up at Garbatulla. The application was opposed by the Interested Party, who deponed that judicial review jurisdiction is sui generis under Order 53 of the Civil Procedure Rules and Sections 8 and 9 of the Law Reform Act, that the 1st November 2017 consent directions on written submissions carried a rider against belated filings, and that the certiorari orders sought had been overtaken by events as the decision had been fully implemented. The Respondent also filed grounds of opposition contending no plausible explanation had been given for non-compliance. Mbugua J found the applicant had about three months to comply, never disclosed when she received the DLASO documents, and that her counsel said nothing about any discovery when present in court on 29 January 2018. Associating herself with authorities on the judicious exercise of discretion, the litigant's ownership of the case, and the need for finality even in land matters, the court held the application unmeritorious and dismissed it with costs to the Respondent and the Interested Party.

Key legal issues

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01

Whether the dismissal for non-compliance with filing timelines should be set aside

Holding

The application was unmeritorious because the applicant failed to give any reasonable explanation for the three-month non-compliance and did not disclose when she obtained the DLASO documents

Reasoning

The court found it undisputed that directions of 1st November 2017 required written submissions within set timelines, that the suit was dismissed on 21st February 2018 for want of compliance, and that counsel present on 29 January 2018 never mentioned the alleged discovery of documents. Blame was placed on the litigant, not counsel, and no reasonable explanation was offered.

p. 2
02

Whether mistake of counsel excuses non-compliance

Holding

No - the mistake of counsel does not per se justify setting aside dismissal; the litigant must follow up the case

Reasoning

Relying on Kimaru J in Alice Mumbi Nganga, the court held that a litigant owns the case and cannot blame the advocate where an adverse decision results from counsel's lack of diligence; the remedy lies in suing the advocate for professional negligence.

p. 2
03

Whether judicial review jurisdiction permits expansion beyond Order 53 and the Law Reform Act

Holding

The Interested Party contended the jurisdiction is sui generis, governed only by Order 53 and Sections 8 and 9 of the Law Reform Act; the court did not expressly decide this

Reasoning

This was raised in the replying affidavit of the Interested Party but the court's determination rested on the applicant's unexplained non-compliance and delay rather than on the scope of judicial review jurisdiction.

p. 1

Legal principles established

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  • A litigant owns the case, not the advocate, and cannot blame counsel's mistakes to obtain indulgence
  • Discretion to reinstate a suit dismissed for non-attendance must be exercised judiciously, with good faith and without unreasonable delay

Court orders

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  1. 1.The application dated 12/3/2018 is dismissed
  2. 2.Costs to the Respondent and the interested party
Jurisdiction invoked
Order 53 of the Civil Procedure Rules and Sections 8 and 9 of the Law Reform Act (judicial review jurisdiction, sui generis)

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, "Republic v District Land Adjudication and Settlement Officer - Tigania East Sub County; Andrew Kinyua Mukiri (Interested Party); Teresina Karambu Joel (Suing as A Legal Representative of the Estate of Joel M’ Imiki M’ Etirikia) Ex Parte [2018] KEELC 954 (KLR)", Case Analysis (2018). Judicial Review Application dated 12th March 2018 (arising from Notice of Motion dated 24th April 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/954/eng@2018-11-08

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