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ELCAllowedNot stated in judgment· [2018] KEELC 974 (KLR)

Stephen Kinja M’ Kiaira v Joseph Michubu Birithia [2018] KEELC 974 (KLR)

Environment and Land Court
8 November 2018
LMLucy N. Mbugua
454 words in judgment
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The bottom line

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Kenya's Environment and Land Court reinstated a case dismissed because the lawyer checked the wrong court list, ruling a lawyer's mistake shouldn't punish the client.

What this practically means

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Executive summary

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The applicant's urgent miscellaneous application filed on 14th March 2018 was listed for inter-partes hearing on 9th April 2018. On that date the respondent and his counsel attended but the applicant and his counsel did not, and the application was dismissed. The applicant then filed the application dated 10th April 2018 seeking reinstatement, supported by affidavits of two advocates, Kirimi Munene and Hosea Mutembei, who explained that counsel had mistakenly checked the addendum cause list instead of the main cause list. The respondent opposed via a replying affidavit filed on 7th May 2018, contending that his counsel was entitled to seek dismissal when there was no appearance for the applicant. The court perused the cause list of 9th April 2018 and confirmed the matter appeared at no. 2 in the main cause list, but that an addendum cause list containing several matters also existed, lending plausibility to counsel's explanation. The court noted the reinstatement application was filed expeditiously, two days after the dismissal, and that the matter was of 2018 and had not been delayed. Invoking the principle from Tana and Athi Rivers Development Authority v Jeremiah Kimigho Mwakio & 3 others [2015] eKLR that courts will readily excuse a mistake of counsel where it affords justiciable, expeditious and holistic disposal, and holding that a mistake of counsel should not be visited upon the litigant, the judge exercised discretion in the applicant's favour. The application dated 10th April 2018 was allowed, with costs to the respondent. Judgment delivered at Meru on 8th November 2018 by Hon. Lucy N. Mbugua, ELC Judge.

Key legal issues

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Whether counsel's mistake in checking the wrong cause list, leading to dismissal for non-appearance, warranted reinstatement

Holding

Yes - the discretion was exercised in favour of the applicant because the application was filed expeditiously and the mistake should not be visited on the litigant

Reasoning

The court found the matter was in the main cause list but an addendum cause list existed, making counsel's confusion plausible. The reinstatement application was filed two days after dismissal and the matter was still fresh (2018). Relying on the Tana and Athi Rivers decision, the court held mistakes of counsel should not defeat substantive justice and allowed reinstatement, with costs to the respondent.

p. 2

Legal principles established

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  • Courts will readily excuse a mistake of counsel where it affords a justiciable, expeditious and holistic disposal of a matter

Court orders

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  1. 1.The application dated 10/4/2018 is allowed
  2. 2.Costs of the application to the Respondent

Authorities

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Cases cited (1)

  • Tana and Athi Rivers Development Authority v Jeremiah Kimigho Mwakio & 3 others
    [2015] Eklr
Jurisdiction invoked
Inherent discretion of the court to reinstate a suit/application dismissed for non-appearance; not expressly cited 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, "Stephen Kinja M’ Kiaira v Joseph Michubu Birithia [2018] KEELC 974 (KLR)", Case Analysis (2018). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/974/eng@2018-11-08

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