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ELCPartially Allowed· [2019] KEELC 237 (KLR)

Seventh Day Adventist Church (East Africa) Ltd t/a Solace Lifestyle and Wellness Resort v Mario Rashid & 16 others [2019] KEELC 237 (KLR)

Environment and Land Court at Malindi
5 December 2019
JOJ.O. Olola
793 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court at Malindi reinstated a land suit dismissed for non-attendance, holding courts will undo dismissals when absence was accidental and no one is prejudiced.

What this practically means

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Executive summary

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By a Notice of Motion dated 22nd October 2018, the Plaintiff, Seventh Day Adventist Church (East Africa) Ltd T/A Solace Lifestyle & Wellness Resort, sought review, variation and setting aside of the orders of 18th October 2018 dismissing its suit (filed 27th November 2014) for want of prosecution, and reinstatement of the suit for hearing. The application, supported by an affidavit of Kelvin Mbura Advocate, was premised on the grounds that counsel was appearing before the High Court at Malindi when the matter was called out, the Plaintiff's Managing Director was within the court vicinity ready to testify, and the Plaintiff was not accorded a chance to be heard. The 1st to 16th Defendants filed no response, but the 17th Defendant, the County Government of Kilifi, through a Replying Affidavit of Michelle Bibi Fondo, opposed the application as an abuse of process, arguing the suit was prejudicial and reinstatement would be an academic exercise. The court, J.O. Olola J, applied the established discretionary principles in Patel v EA Cargo Handling Services Ltd and Shah v Mbogo, holding that the discretion to set aside is broad and aimed at doing justice, excusing accident, inadvertence or excusable mistake. Counsel exhibited the High Court cause list confirming his engagement elsewhere; the Managing Director was present. Significantly, the court noted that the 17th Defendant and all other Defendants were themselves absent on the dismissal date, and found no prejudice would ensue from reinstatement. The application was allowed, the dismissal set aside, and costs were made costs in the cause.

Key legal issues

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01

Whether the dismissal of the Plaintiff's suit for want of prosecution on 18th October 2018 ought to be set aside and the suit reinstated

Holding

The dismissal was set aside and the suit reinstated because the Plaintiff's Advocate was engaged in the High Court at Malindi, the Managing Director was nearby ready to testify, and the Defendants (including the 17th Defendant) were equally absent on the dismissal date, so no prejudice would flow from reinstatement.

Reasoning

The court applied the classic discretionary principles in Patel v EA Cargo Handling Services Ltd and Shah v Mbogo, which emphasise doing justice between the parties and excusing accident, inadvertence or excusable mistake. The Plaintiff's Advocate exhibited the High Court cause list showing he was in another court; his clerk arrived after the matter was called out. The 17th Defendant, which opposed reinstatement, was itself absent when the suit was dismissed, as were all other Defendants, undermining any claim of prejudice. The application was also brought without undue delay. On these facts, the discretion was properly exercised in favour of reinstatement, with costs in the cause.

p. 2

Legal principles established

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  • The court's discretion to set aside an interlocutory order or judgment is wide and its main concern is to do justice to the parties.
  • The discretion to set aside is to be exercised to avoid injustice or hardship from accident, inadvertence or excusable mistake, not to assist deliberate obstruction.

Court orders

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  1. 1.The Plaintiff's application dated 22nd October 2018 is allowed
  2. 2.The suit dismissed on 18th October 2018 is reinstated for hearing
  3. 3.Costs shall 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 and discretionary power to review/set aside interlocutory orders, exercised in the interest of justice (court's discretion to set aside dismissal for want of prosecution)

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, "Seventh Day Adventist Church (East Africa) Ltd t/a Solace Lifestyle and Wellness Resort v Mario Rashid & 16 others [2019] KEELC 237 (KLR)", Case Analysis (2019). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/237/eng@2019-12-05

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