Jitesh Shah & 2 others v Deputy Registrar Environment Land Court Nairobi & another [2018] KEELC 2415 (KLR)
The bottom line
#Kenya's High Court set aside a dismissal caused by a lawyer's diary error, confirming that courts prioritise substance over procedural technicalities.
What this practically means
#Executive summary
#Key legal issues
#Setting aside dismissal order for non-attendance due to counsel's misdiarised date
The dismissal order was set aside because non-attendance resulted from an excusable mistake - counsel misdiarised 18th January 2018 as 19th January 2018, as evidenced by the exhibited diary entries
The court exercised its discretion to prevent injustice caused by an excusable mistake. Counsel exhibited copies of his diary for 18th and 19th January 2018, establishing that the hearing date was wrongly recorded as 19th January. The non-attendance was therefore not deliberate, and no party would be prejudiced if the dismissal was set aside so the applicants could be heard on their chamber summons for leave to apply for judicial review.
Competence of an advocate swearing the supporting affidavit
The affidavit was properly sworn by the advocate because the matters deposed to were non-contentious - the advocate attended court and personally made the wrong diary entry
The interested party argued the affidavit was defective for having been sworn by an advocate. The court held that where facts are not contentious, an advocate may swear an affidavit. Since the advocate was the one in court and the one who made the erroneous diary entry, he was the proper person to explain the non-attendance on oath.
Defect of procedure (application allegedly should have been under Order 51)
The objection was rejected; an application is not defeated on a technicality or want of form that does not affect its substance
The interested party argued the application should have been brought under Order 51 of the Civil Procedure Rules and that Article 159 of the Constitution was irrelevant. The court applied Order 51 Rule 10(2), which provides that no application shall be defeated on a technicality or want of form not affecting substance, and invoked Article 159's command to administer justice without undue regard to procedural technicalities.
Legal principles established
#- Whether to set aside an order of the court is an exercise of judicial discretion intended to avoid injustice arising from an excusable mistake
- An advocate may swear an affidavit on non-contentious matters, such as explaining his own misdiarisation of a hearing date
- No application shall be defeated on a technicality or for want of form that does not affect its substance, consistent with Article 159
Court orders
#- 1.The court's order of 18th January 2018 dismissing the applicants' chamber summons dated 6th January 2017 is set aside
- 2.The applicants' Notice of Motion dated 25th January 2018 is allowed as prayed in its entirety
- Jurisdiction invoked
- Inherent discretion to set aside orders of dismissal for non-attendance, read with Article 159 of the Constitution and Order 51 Rule 10(2) of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jitesh Shah & 2 others v Deputy Registrar Environment Land Court Nairobi & another [2018] KEELC 2415 (KLR)", Case Analysis (2018). Notice of Motion dated 25th January 2018 (Judicial Review proceedings). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2415/eng@2018-06-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.