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ELCAllowedNot stated in the judgment· [2018] KEELC 4312 (KLR)

Shayona Timber Limited v Kenya National Highway Authority [2018] KEELC 4312 (KLR)

Environment and Land Court
28 February 2018
MSMUNYAO SILA
727 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 land suit dismissed when nobody showed up, confirming judges can restore cases for good reason.

What this practically means

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Executive summary

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The plaintiff applied by notice of motion dated 30 January 2018, under Order 12 Rule 7 of the Civil Procedure Rules and Sections 3 and 3A of the Civil Procedure Act, for reinstatement of its suit, which was dismissed on 29 January 2018 under Order 12 Rule 3(1) after neither the plaintiff nor counsel was present when the case was called out for hearing. In the supporting affidavit sworn by Mr. Lawrence Macharia Karanja, counsel for the plaintiff, it was explained that counsel was in court that day, attended to another mention, and stepped out to appear before a High Court judge when the suit was called out and dismissed; the plaintiff's witness was within town and expected a call from counsel once the matter was confirmed for hearing. Munyao Sila J held that the court was empowered to dismiss the suit for non-attendance, but retained discretion under Order 12 Rule 7 to reinstate it, a discretion to be exercised judiciously and only upon good reason. While counsel's absence was excused, the court observed that the plaintiff's own absence rested on the risky practice of waiting for counsel's call, and that litigants must be ready at any time on a hearing date. Nevertheless, to afford the plaintiff its day in court, and given that no response was filed and the respondent did not appear, the application was allowed and the suit reinstated, with no orders as to costs.

Key legal issues

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01

Discretion to reinstate a suit dismissed for non-attendance

Holding

The discretion exists under Order 12 Rule 7 and must be exercised judiciously; good reason for non-attendance must be given, but the court may excuse absence in the interest of allowing a party its day in court.

Reasoning

Order 12 Rule 3(1) mandated dismissal when only the defendant attended and admitted no part of the claim. Order 12 Rule 7 empowers the court to set aside such dismissal on terms that are just. Counsel explained his absence, though the plaintiff's own absence was only partly excusable. Since no response was filed and the respondent did not appear, the court exercised its discretion to reinstate the suit so the plaintiff could have its day in court, with no orders as to costs.

p. 2

Legal principles established

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  • The court has discretion to reinstate a suit dismissed for non-attendance, to be exercised judiciously and on good reason being shown.
  • Litigants must be ready to attend at any time on the day fixed for hearing; it is not for the court to wait for litigants to appear at their convenience.

Court orders

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  1. 1.The application dated 30 January 2018 is allowed and the suit dismissed on 29 January 2018 is reinstated
  2. 2.No orders as to costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 12 Rule 7
  • Civil Procedure RulesOrder 12 Rule 3(1)
  • Civil Procedure ActSection 3
  • Civil Procedure ActSection 3A
Jurisdiction invoked
Order 12 Rule 7 of the Civil Procedure Rules, and Sections 3 and 3A of the Civil Procedure Act

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, "Shayona Timber Limited v Kenya National Highway Authority [2018] KEELC 4312 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4312/eng@2018-02-28

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