Bantus Investments Limited v Kenya Wildlife Service [2018] KEELC 4147 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiff's suit dismissed for non-attendance/non-compliance ought to be reinstated
Yes - the application was allowed and the suit reinstated subject to throw away costs
The court found that the Plaintiff's advocate on record failed to communicate the court's directions of 31/8/2016 to the Plaintiff's advocates due to an inadvertent mistake, showing the Plaintiff was not indolent. No prejudice to the Defendant was demonstrated. Guided by Shah v Mbogo and Mwangi S. Kaimenyi, and Article 159's command of substantive justice over procedural technicality, the court held the Plaintiff deserved another chance.
Whether the Defendant would suffer prejudice if the suit were reinstated
No prejudice was demonstrated
The court found the Defendant had not demonstrated any prejudice it would suffer upon reinstatement, and that the Plaintiff's advocates had offered a reasonable excuse for the failure to attend court and comply with the directions of 31/8/2016, including an explanation for the delay in bringing the application.
Legal principles established
#- The discretion to set aside an ex parte judgment or order is meant to avoid injustice from accident, inadvertence or excusable mistake, not to assist a party who deliberately obstructs or delays justice.
- Dismissal of a suit is a draconian act to be done sparingly; courts should sustain suits where justice can still be done despite delay.
Court orders
#- 1.The orders of the court dated 22/11/2016 dismissing the suit are set aside and the suit is reinstated subject to the Plaintiff paying the Defendant throw away costs of Kshs 25,000 within twenty one (21) days
- 2.In default of payment, the Plaintiff's suit shall stand dismissed with costs
- 3.The Plaintiff to set down the suit for hearing on a debate to be granted at the registry on a priority basis
- 4.The Plaintiff to bear costs of this application
- Jurisdiction invoked
- Section 3A of the Civil Procedure Act, Cap 21; Order 12 Rule 7 of the Civil Procedure Rules; Article 50 of the Constitution of Kenya, 2010; inherent power of the court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bantus Investments Limited v Kenya Wildlife Service [2018] KEELC 4147 (KLR)", Case Analysis (2018). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4147/eng@2018-02-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.