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ELCPartially AllowedNot stated in ruling (Kerugoya ELC suit filed 26th June 2003)· [2018] KEELC 3944 (KLR)

Stephen Muigi Ruri v Francis Njogu & 2 others [2018] KEELC 3944 (KLR)

Environment and Land Court
20 March 2018
BOB.N. OLAO
1,506 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Kerugoya (B.N. Olao J) disposed of the plaintiff's Notice of Motion dated 21st February 2018 seeking to set aside the dismissal of his suit on 23rd January 2018 and its reinstatement for hearing. The suit, filed in 2003, concerned rectification of the boundary between the plaintiff's parcels MUTITHI/STRIP/515, 516, 514 and 512 and the defendants' and interested parties' parcels; the interested parties had a counter-claim seeking removal of trees the plaintiff planted on the boundary of MUTITHI/STRIP/507-511. The plaintiff attributed his non-attendance to his advocate's clerk inadvertently failing to diarize the matter. The defendants and the interested party opposed, deposing that the suit was 15 years old, that the plaintiff was in fact in Court on the dismissal date and stood when the matter was called but said nothing, and that he had received notice of the intended dismissal through the area chief. Those averments were unrebutted. The court held that litigation belongs to the party, who must be vigilant; the plaintiff's presence and silence showed lack of interest. However, applying Philip Chemwolo & Another v Augustine Kubende, the mistake of counsel should not be visited on the client, and the counter-claim meant all parties still had cases to ventilate. The application was allowed: the dismissal was set aside and the suit reinstated, on condition that the plaintiff pay the defendants' costs assessed at Ksh. 10,000 within 30 days, failing which the dismissal order would revert. The parties were directed to pursue determination of the boundary dispute by the District Surveyor and District Land Registrar Kirinyaga.

Key legal issues

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01

Whether the dismissal order of 23rd January 2018 should be set aside

Holding

Set aside; the absence of the plaintiff's counsel was due to a satisfactorily explained mistake of the clerk/counsel and it would be harsh to punish the client

Reasoning

The court found that although the plaintiff was himself in Court on the dismissal date and did not address the Court, his counsel's absence was attributable to the clerk's failure to diarize the matter. Relying on Chemwolo v Kubende, mistakes of counsel should not be visited on the client absent fraud. The counter-claim remained live, so interests of justice favoured ventilation of all parties' cases, with costs cushioning the delay.

p. 3
02

Whether the plaintiff was candid about his attendance on the dismissal date

Holding

The unrebuted averments of the defendants showed the plaintiff was in Court and aware of the dismissal date

Reasoning

The plaintiff swore that neither he nor his advocate attended because of the clerk's failure to diarize. The 1st defendant's affidavit, unrebuted, deponed that the plaintiff was present and stood when the matter was called. The court treated the plaintiff's claim as contradicted but excusable only as regards counsel's absence, not his own silence.

p. 2

Legal principles established

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  • Litigation belongs to the party, not counsel, who must be vigilant in prosecuting his case
  • A mistake of counsel should not ordinarily be visited on the client; errors can be put right by payment of costs

Court orders

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  1. 1.The order dated 23rd January 2018 dismissing the plaintiff's suit is set aside and the suit is reinstated for hearing and determination
  2. 2.The plaintiff shall pay to the defendants costs assessed at Ksh. 10,000 within 30 days of the ruling, and in default the order dated 23rd January 2018 shall revert
  3. 3.The parties are directed to vigorously pursue determination of the dispute by the District Surveyor and District Land Registrar Kirinyaga

Authorities

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Cases cited (1)

  • PHILIP CHEMWOLO & ANOTHER VS AUGUSTINE KUBENDE
    (1982-88) K.A.R 103
Jurisdiction invoked
Inherent powers of the Court to set aside its own orders (Disposal by consent of parties' respective affidavits; application under Notice of Motion dated 21st February 2018)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Stephen Muigi Ruri v Francis Njogu & 2 others [2018] KEELC 3944 (KLR)", Case Analysis (2018). Not stated in ruling (Kerugoya ELC suit filed 26th June 2003). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3944/eng@2018-03-20

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