Ali Ramadhan Mwatsahu & another v Halima Binti Umar & 2 others [2018] KEELC 1847 (KLR)
The bottom line
#The Environment and Land Court refused to revive a dismissed land suit because the plaintiffs gave no credible reason for missing their hearing date.
What this practically means
#Executive summary
#Key legal issues
#Threshold for setting aside dismissal for non-attendance under Order 12 Rule 7
The application failed because no adequate, credible reason for the plaintiffs' and counsel's non-attendance was established
Order 17 Rule 3 permits dismissal for non-attendance and Rule 7 permits reinstatement on application. The application was filed about 21 days after dismissal, so not unduly delayed, but service was late. The court found the advocate's explanation (attending another matter before Omollo J) implausible as no particulars were given and no colleague was asked to hold brief, and the 2nd plaintiff's claim of being present but not hearing the case called out incredible.
Credibility of the explanations for absence
Both explanations were rejected as not credible or plausible
Counsel's claim of another matter before Omollo J was unsupported by particulars, and he failed to arrange someone to hold his brief. The 2nd plaintiff's assertion that he was in court and heard other matters yet did not hear his own called out was found incredible; further, the affidavits described the court clerk as male when the court assistant that day was female, undermining their account.
Pattern of delay
The prior non-attendance on 12th July 2017 and subsequent dismissal suggested a pattern of delaying the suit
The suit had been fixed for hearing on 12th July 2017 in the presence of both parties but the plaintiffs and their advocate failed to attend, leading to refixing for 27th November 2017 when the suit was again dismissed for non-attendance. The court drew the inference of a pattern of delay, whether deliberate or otherwise.
Legal principles established
#- The court's discretion to reinstate a suit dismissed for non-attendance must be exercised judiciously, to avoid injustice from accident, inadvertence or excusable mistake, not to assist a party deliberately obstructing or delaying the course of justice
- Where there is good reason provided, the court generally ought to allow an application to reinstate a suit
Court orders
#- 1.The Notice of Motion dated 18th December 2017 is dismissed
- 2.Costs of the application to the 3rd Respondent
- Jurisdiction invoked
- Order 12 Rule 7 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ali Ramadhan Mwatsahu & another v Halima Binti Umar & 2 others [2018] KEELC 1847 (KLR)", Case Analysis (2018). Eldoret ELC – Notice of Motion dated 18th December, 2017 (suit dismissed 27th November, 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1847/eng@2018-09-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.