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ELCAllowedNot stated in the judgment· [2018] KEELC 1707 (KLR)

Makembo Kaya v Silas Nyaga & 6 others [2018] KEELC 1707 (KLR)

High Court of Kenya
1 October 2018
PNP. M. NJOROGE
455 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court revived a land suit dismissed after a missed hearing, ruling that a party who never received the hearing date deserves another chance.

What this practically means

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Executive summary

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This was an unopposed application dated 20th June 2018 seeking to set aside a dismissal order of 6th February 2018 and to have the suit, a land dispute, listed for a fresh hearing. The application was supported by an affidavit sworn by the plaintiff's advocate, B. G. Kariuki, who explained that a prior hearing date of 25th October 2017 had fallen on a public holiday, and that on 12th June 2018 his clerk ascertained from the Chuka registries that a hearing date of 6th February 2018 had been set but was never served on his office. Consequently neither the plaintiff nor his advocate attended court and the suit was dismissed. The advocate deponed that the absence was not deliberate, that the plaintiff was still interested in pursuing the case, that the plaintiff would suffer irreparably if the dismissal stood given the land dispute, and that the defendants would suffer no prejudice. When the application came up for inter partes hearing on 25th July 2018, Miss Wambugu for the applicant asked the court to allow it on the ground that it was unopposed, and Mr. Mark Muriithi for the defendants confirmed that the defendants were not opposed. Justice P. M. Njoroge, exercising the court's discretion in the interest of justice, allowed the application, set aside the dismissal order, directed that costs be in the cause, and ordered the parties to appear for the hearing of the suit on 16th October 2018. The judgment was delivered in open court at Chuka on 1st October 2018.

Key legal issues

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01

Whether the dismissal order of 6th February 2018 ought to be set aside

Holding

The court set aside the dismissal and directed a fresh hearing date.

Reasoning

The application was unopposed: both the applicant's counsel (Miss Wambugu) and counsel for the defendants (Mr. Muriithi) indicated no opposition. The supporting affidavit explained that the hearing date was never served on the plaintiff's advocates, so the non-appearance was not deliberate, and the plaintiff remained interested in pursuing the land suit. In the interest of justice the dismissal was set aside and a hearing date fixed.

p. 2

Legal principles established

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  • An unopposed application to set aside a dismissal may be allowed in the interest of justice where the applicant's non-attendance was not deliberate and no prejudice is caused to the other side.

Court orders

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  1. 1.The dismissal order of 6.2.2018 is set aside
  2. 2.The suit is to proceed to a fresh hearing
  3. 3.Parties to come to court for hearing of the suit on 16th October, 2018
  4. 4.Costs shall be in the cause
Jurisdiction invoked
Inherent powers of the High Court over suits before it (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, "Makembo Kaya v Silas Nyaga & 6 others [2018] KEELC 1707 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1707/eng@2018-10-01

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