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ELCAllowedNot stated in the extracted judgment· [2018] KEELC 3632 (KLR)

Monika Kioko v Renson Munga [2018] KEELC 3632 (KLR)

Environment and Land Court
3 May 2018
JOJ.O. Olola
946 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court reinstated a landowner's dismissed case, holding her lawyer's illness explained the delay and her claim deserved a proper hearing.

What this practically means

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Executive summary

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The Plaintiff, Monika Kioko, filed a Notice of Motion dated 9th October 2017 seeking to set aside and vacate an order made on 30th June 2016 dismissing her main suit, and for costs of the application to be in the cause. Her suit, filed on 30th November 2011, sought declaratory orders over three plots at Maweni Area, Mtwapa Township, sub-divisions of land portion No. 334/111/MN. The suit was dismissed when her Advocate, Mr. Maranga Maosa, was absent; counsel holding brief sought an adjournment on grounds of indisposition which the court declined, there having already been a last adjournment and no proof of illness. The Plaintiff averred she was out of the country, relied wholly on her Advocate, and was never informed of the hearing or dismissal; she only learned of the position after the Advocate died on 15th August 2017. The Defendant opposed through Grounds of Opposition, arguing the application was misconceived, that the Plaintiff was guilty of laches and gross indolence amounting to inordinate delay, and that the application was an abuse of process and prejudicial. Applying the principles in Patel v EA Cargo Handling Services Ltd and Shah v Mbogo, the court held that the discretion to set aside dismissal exists to avoid injustice from accident, inadvertence or excusable mistake, and found the Plaintiff's delay was not deliberate but attributable to her ailing Advocate. Noting that the Plaintiff claimed a permanent residential building on one of the plots, the court found it fair and just that the suit be heard on its merits and allowed the application with costs in the cause.

Key legal issues

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01

Whether counsel's failure and illness justified setting aside dismissal of the suit

Holding

The delay was not deliberate; the Plaintiff's Advocate's illness and non-disclosure of the dismissal amounted to excusable mistake, so the dismissal was set aside.

Reasoning

The court found the Plaintiff was out of the country and reliant on her Advocate, who had been ailing and died on 15th August 2017 without disclosing the dismissal. While the suit had taken time and should have proceeded, the delay was not calculated to obstruct justice. The Plaintiff also claimed a permanent residential building on one of the plots, making it fair and just to hear the suit on its merits.

p. 2
02

Whether a triable issue existed to warrant reinstatement

Holding

The Plaintiff's claim of a permanent building on one of the plots in contention raised a matter deserving determination on the merits.

Reasoning

Applying the Patel test, the court perused the Plaint and Supporting Affidavit and found the Plaintiff claimed a permanent residential home on one of the disputed plots. This constituted a substantive claim meriting a hearing on the merits rather than determination by dismissal for non-attendance, especially where the Defendant would suffer no prejudice.

p. 2

Legal principles established

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  • A court will not usually set aside a regular judgment unless satisfied there is a defence on the merits, meaning a triable issue, not a defence that must succeed
  • The discretion to set aside an ex parte judgment exists to avoid injustice from accident, inadvertence or excusable mistake, not to assist deliberate obstruction or delay

Court orders

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  1. 1.The order of 30th June 2016 dismissing the Plaintiff's main suit is set aside and the suit is reinstated
  2. 2.Costs of the application to be in the cause

Authorities

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Cases cited (2)

  • Patel –vs- EA Cargo Handling Services Ltd
    (1974) EA 75
  • Shah –vs- Mbogo
    (1967) EA 166
Jurisdiction invoked
Inherent discretion of the court to set aside its own orders (reinstatement of a suit dismissed for non-attendance); no specific constitutional or statutory provision cited

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, "Monika Kioko v Renson Munga [2018] KEELC 3632 (KLR)", Case Analysis (2018). Not stated in the extracted judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3632/eng@2018-05-03

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