Esther Cherop Chebelyo v Oriental Commercial Bank Ltd & 3 others [2019] KEELC 1408 (KLR)
The bottom line
#A Kenyan court reinstated a dismissed land case, ruling that an innocent client shouldn't lose their hearing because of their lawyer's mistake, and made the lawyer personally pay the costs.
What this practically means
#Executive summary
#Key legal issues
#Whether a suit dismissed for want of prosecution arising from counsel's non-appearance based on an alleged understanding with defence counsel should be reinstated
The dismissal was set aside and the suit reinstated notwithstanding the plaintiff's counsel's blameworthy conduct, because the plaintiff would otherwise be denied a hearing for no fault of her own
The court found there was a genuine understanding between the plaintiff's counsel and the 3rd defendant's counsel which excluded the other defendants' counsel. Counsel for the plaintiff bore fault for presuming an adjournment, but the dismissal would deny the plaintiff a hearing through no fault of her own. Applying Article 159(2)(d) and the line of authority on the court's discretion to set aside dismissals, justice favoured reinstatement on terms, with costs personally imposed on the errant advocate.
Whether an advocate's unilateral understanding with opposing counsel could bind the court to an adjournment
Adjournments are not a right; once a suit is fixed for hearing, adjournment is at the court's discretion, and counsel erred in presuming the court would automatically adjourn
The court held that counsel for the plaintiff had no good reason for missing the hearing date fixed in March 2019 in the presence of all advocates, since the understanding was only with the 3rd defendant's counsel and was never communicated to or sanctioned by the court. The court nonetheless refused to visit that error on the innocent client, and criticised counsel's conduct as reprehensible.
Legal principles established
#- Courts should, where practicable, set aside dismissal orders in favour of hearing cases on their merits rather than dismissing suits on technicalities such as non-appearance of counsel
- A litigant should not be penalised for the mistakes of his advocate; errors or defaults can be put right by payment of costs
Court orders
#- 1.The order of court made on 8/7/2019 dismissing the plaintiff's suit for want of prosecution is set aside and the suit is reinstated
- 2.The costs of the application and the costs of the proceedings of 8/7/2019 shall be agreed on and, if not, taxed and paid by Mr. Michael Chemwok, advocate for the plaintiff, before the next hearing date
- Jurisdiction invoked
- Section 3A of the Civil Procedure Act, Chapter 21, Laws of Kenya; Order 12 Rules 1 and 7 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Esther Cherop Chebelyo v Oriental Commercial Bank Ltd & 3 others [2019] KEELC 1408 (KLR)", Case Analysis (2019). Not stated in the judgment (Notice of Motion dated 12/7/2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1408/eng@2019-09-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.