Affiliated Business Contacts Limited v Peter Mwangi (sued as the Chairman of Mukuru Kwa Reuben Self Help Group) & 2 others [2018] KEELC 1020 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether non-attendance was deliberate or an excusable mistake
The failure to attend was not deliberate but arose from the advocate's mistaken belief that the court would not sit
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.
Whether the dismissal order and consequential proceedings should be set aside
The dismissal of ELC 841 of 2007 and the proceedings in ELC 910 of 2007 taken on 23rd April 2018 were set aside
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.
Legal principles established
#- 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
#- 1.The order dismissing ELC 841 of 2007 made on 23rd April 2018 is set aside
- 2.ELC No. 841 of 2007 is reinstated for hearing
- 3.The proceedings taken on 23rd April 2018 in ELC 910 of 2007 and any consequential orders are set aside
- 4.The applicant to pay the 1st defendant/respondent in ELC 841 of 2007 costs of Kshs.10,000 within 7 days
- 5.Parties to appear before the Deputy Registrar the same day for fixing a hearing date during service week at Milimani
- Jurisdiction invoked
- Inherent discretion of the Environment and Land Court to set aside its own orders
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.