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ELCPartially AllowedMakueni ELC No. 282 of 2017· [2019] KEELC 426 (KLR)

Julius Kyalo Musyoki v Joseph Musau Musyoki & 2 others [2019] KEELC 426 (KLR)

Environment and Land Court
29 November 2019
MGMBOGO C. G.
1,100 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Makueni court reinstated a land case dismissed after the lawyer missed the hearing, ruling that clients shouldn't pay for their advocate's mistakes.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Makueni on the Plaintiff's notice of motion dated 7th May 2019, brought under Order 12 Rule 7 of the Civil Procedure Rules, seeking to set aside the court's order of 29th April 2019 dismissing the suit for non-attendance and to reinstate it for hearing, with costs in the cause. The Applicant explained that his counsel misdiarised the hearing date fixed by consent on 28th January 2019, attaching diary entries suggesting confusion between this file (ELC No. 282/17) and the office reference BMJ/264, previously a criminal case at Kilungu; counsel further relied on Article 50 of the Constitution on fair hearing and submitted that no prejudice would befall the Respondents. The Respondents, through the replying affidavit of the 1st Defendant, opposed the application, contending that the hearing date was taken by consent of both advocates, that the diary extracts produced did not include this matter, and that counsel had other matters in the same cause list on the dismissal date and made no attempt to ascertain the case status between February and April 2019. The court held that the mistakes were those of the Applicant's counsel, invoked the settled principle that such mistakes should not be visited upon clients, and found no prejudice to the Respondents who could be compensated by costs. The court allowed the application in terms of prayer 1, setting aside the dismissal order and reinstating the suit for hearing, but ordered the Applicant to meet the costs of the application. Signed, dated and delivered at Makueni on 29th November 2019 by Mbogo C. G., Judge.

Key legal issues

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Whether a dismissal for non-attendance should be set aside where the dismissal resulted from the advocate's error

Holding

The application was allowed because the mistake was the advocate's and no prejudice would befall the Respondents

Reasoning

The court found that the suit was dismissed for non-attendance on 29th April 2019 because the Applicant's counsel misdiarised the hearing date. Applying the principle that litigants should not suffer for their advocates' mistakes, and finding no prejudice to the Respondents since they could be compensated by costs, the court exercised its discretion under Order 12 Rule 7 to set aside the dismissal and reinstate the suit for hearing on the merits.

p. 2

Legal principles established

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  • Mistakes of advocates should not be visited upon their clients
  • A Respondent who suffers no prejudice from reinstatement can be compensated by costs

Court orders

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  1. 1.The court's order dated 29th April 2019 dismissing the suit is set aside and the suit is reinstated for hearing
  2. 2.The Applicant to meet the costs of the application

Authorities

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Legislation

  • Civil Procedure RulesOrder 12 Rule 7
  • Constitution of Kenya, 2010Article 50
Jurisdiction invoked
Order 12 Rule 7 of the Civil Procedure Rules and all other enabling provisions of the law

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, "Julius Kyalo Musyoki v Joseph Musau Musyoki & 2 others [2019] KEELC 426 (KLR)", Case Analysis (2019). Makueni ELC No. 282 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/426/eng@2019-11-29

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