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ELCAllowedNotice of Motion dated 25th January 2018 (Judicial Review proceedings)· [2018] KEELC 2415 (KLR)

Jitesh Shah & 2 others v Deputy Registrar Environment Land Court Nairobi & another [2018] KEELC 2415 (KLR)

High Court of Kenya (Judicial Review Division), Nairobi
28 June 2018
686 words in judgment
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The bottom line

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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

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Executive summary

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The ex-parte applicants moved the court by Notice of Motion dated 25th January 2018 seeking to set aside an order of 18th January 2018 dismissing their chamber summons dated 6th January 2017, which had sought leave to bring an application for judicial review. They explained that their advocate misdiarised the hearing date as 19th January 2018 instead of 18th January 2018; on attending on 19th January, counsel found the application unlisted and, upon perusing the court file, learnt it had been dismissed the previous day for non-attendance. The application was opposed only by the interested party, which argued it was irredeemably defective: the supporting affidavit had been sworn by an advocate, the application should have been brought under Order 51 of the Civil Procedure Rules, and reliance on Article 159 of the Constitution was misplaced. The applicants' counsel contended the non-attendance was not deliberate but an excusable mistake that would prejudice no party, and that the facts he deposed to were non-contentious, entitling him to swear the affidavit. The court held that setting aside an order is a discretionary exercise aimed at avoiding injustice from excusable mistakes; the exhibited diary entries demonstrated the misdiarisation. It further held an advocate may swear an affidavit on non-contentious facts, and applied Order 51 Rule 10(2) and Article 159 to reject the technicality objection. The motion was allowed as prayed in its entirety, restoring the chamber summons for hearing. No costs order was recorded.

Key legal issues

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01

Setting aside dismissal order for non-attendance due to counsel's misdiarised date

Holding

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

Reasoning

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.

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02

Competence of an advocate swearing the supporting affidavit

Holding

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

Reasoning

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.

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03

Defect of procedure (application allegedly should have been under Order 51)

Holding

The objection was rejected; an application is not defeated on a technicality or want of form that does not affect its substance

Reasoning

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.

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Legal principles established

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  • 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

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  1. 1.The court's order of 18th January 2018 dismissing the applicants' chamber summons dated 6th January 2017 is set aside
  2. 2.The applicants' Notice of Motion dated 25th January 2018 is allowed as prayed in its entirety

Authorities

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Legislation

  • Civil Procedure RulesOrder 51 Rule 10(2)
  • Constitution of Kenya, 2010Article 159
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

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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, "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.