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ELCAllowedELC 841 of 2007 (consolidated with ELC 910 of 2007)· [2018] KEELC 1020 (KLR)

Affiliated Business Contacts Limited v Peter Mwangi (sued as the Chairman of Mukuru Kwa Reuben Self Help Group) & 2 others [2018] KEELC 1020 (KLR)

Environment and Land Court
18 October 2018
1,080 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land court reinstated a dismissed case because the lawyer's absence was an honest mistake, not a deliberate snub.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Nairobi (Obaga J) determined a Notice of Motion dated 4th July 2018 by the plaintiff in ELC 841 of 2007, a suit consolidated with ELC 910 of 2007, seeking to set aside the court's order of 23rd April 2018 dismissing ELC 841 of 2007 for non-attendance. On 23rd April 2018 the plaintiff was unrepresented; the 1st defendant's counsel applied for dismissal, and ELC 841 of 2007 was dismissed while ELC 910 of 2007 proceeded to full hearing. Judgment writing in ELC 910 of 2007 was suspended pending this application, and by a consent of 16th October 2018 the plaintiffs in ELC 910 of 2007 and the 2nd and 3rd defendants agreed that proceedings there start afresh and that the application be allowed against them; only the 1st defendant in ELC 841 of 2007 opposed. The applicant's advocate explained that he mistakenly believed all judges were away for an annual conference pursuant to a notice affecting High Court judges, and only learned of the dismissal on 31st May 2018. The court held the non-attendance was not deliberate but an excusable mistake, applying Shah v Mbogo (1967) EA 116, and affirmed the valued right to be heard. The court set aside the dismissal order, reinstated ELC 841 of 2007 for hearing, set aside the 23rd April 2018 proceedings in ELC 910 of 2007 with consequential orders, awarded the 1st defendant costs of Kshs.10,000 payable within 7 days, and directed parties to appear before the Deputy Registrar for fixing a hearing date.

Key legal issues

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01

Whether non-attendance was deliberate or an excusable mistake

Holding

The failure to attend was not deliberate but arose from the advocate's mistaken belief that the court would not sit

Reasoning

The applicant's advocate relied on a notice that High Court judges would be away between 22nd and 26th April 2018 and wrongly assumed it covered ELC judges. The court found the mistake excusable, noting that the notice did not affect Environment and Land Court judges, and applied Shah v Mbogo on setting aside dismissal orders for excusable mistake.

p. 2
02

Whether the dismissal order and consequential proceedings should be set aside

Holding

The dismissal of ELC 841 of 2007 and the proceedings in ELC 910 of 2007 taken on 23rd April 2018 were set aside

Reasoning

The court balanced the valued right to be heard against the respondent's claims of abuse of process and unclean hands, finding no deliberate absence or abuse. It reinstated ELC 841 of 2007 and set aside the ELC 910 of 2007 proceedings, consistent with the consent by most parties, while awarding the 1st defendant costs.

p. 2

Legal principles established

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  • The discretion to set aside dismissal for non-attendance is not available to a party who deliberately absents himself, but applies where non-attendance results from an excusable mistake
  • The right to be heard is a valued right, denied only where the applicant abuses the court process after deliberate absence

Court orders

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  1. 1.The order dismissing ELC 841 of 2007 made on 23rd April 2018 is set aside
  2. 2.ELC No. 841 of 2007 is reinstated for hearing
  3. 3.The proceedings taken on 23rd April 2018 in ELC 910 of 2007 and any consequential orders are set aside
  4. 4.The applicant to pay the 1st defendant/respondent in ELC 841 of 2007 costs of Kshs.10,000 within 7 days
  5. 5.Parties to appear before the Deputy Registrar the same day for fixing a hearing date during service week at Milimani

Authorities

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Cases cited (1)

  • Shah Vs Mbogo
    (1967) EA 116
Jurisdiction invoked
Inherent discretion of the Environment and Land Court to set aside its own orders

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, "Affiliated Business Contacts Limited v Peter Mwangi (sued as the Chairman of Mukuru Kwa Reuben Self Help Group) & 2 others [2018] KEELC 1020 (KLR)", Case Analysis (2018). ELC 841 of 2007 (consolidated with ELC 910 of 2007). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1020/eng@2018-10-18

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