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ELCDismissedMiscellaneous application dated 23 April 2019 (arising from motion dated 8 February 2019)· [2019] KEELC 1925 (KLR)

Asha Nasieku Teeka & David Saruni Teeka (Suing as the legal representatives of the late Ibrahim Tajeu Teeka-Deceased) v Maren Ole Pilale (Environment and Land Miscellaneous Application 3 of 2019) [2019] KEELC 1925 (KLR)

Environment and Land Court
24 July 2019
1,317 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to reinstate a dismissed transfer application because the illness excuse was unproven, the suit was nearly over, and the applicant delayed two months.

What this practically means

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Executive summary

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The applicant, Maren Ole Pilale, applied by motion dated 23 April 2019 for reinstatement of a motion dated 8 February 2019 seeking transfer of Nakuru Chief Magistrate's Court ELC Case No. 301 of 2018 to the Chief Magistrate's Court in Narok, on the basis that the suit property, Narok Cis-Mara-Ilmashariani/Morijo/371, and the parties are in Narok. That transfer motion had been dismissed on 26 February 2019 for non-attendance and failure to prosecute, after neither Mr. Meingati for the applicant nor the applicant attended court. The applicant explained the non-attendance through Mr. Meingati's affidavit deposing that he was indisposed and had instructed Mr. Charles Langat to hold brief, but that Mr. Langat was held up in another court. The respondents, the legal representatives of the estate of Ibrahim Tajeu Teeka, opposed the application, pointing out that the underlying suit had already been heard and was pending judgment, that there was no proof of indisposition, and that the reinstatement application was filed over two months after dismissal. The court found the illness explanation unverified, since there was nothing from Mr. Langat confirming instructions to hold brief or his whereabouts. It further held that reinstating a transfer motion in respect of a suit already heard and pending judgment would serve no judicial utility and would only delay proceedings, and that the unexplained delay of more than two months independently weighed against exercising discretion for the applicant. The application was dismissed with costs, the transfer motion remaining dismissed.

Key legal issues

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01

Whether the dismissal of the motion for non-attendance should be revisited on the ground of counsel's illness

Holding

The explanation of counsel's indisposition was insufficient because there was no deposition from Mr. Langat confirming instructions to hold brief, and counsel did not communicate his indisposition to opposing counsel or the court

Reasoning

Although documents showed Mr. Meingati was treated at Narok Cottage Hospital on 24 February 2019, he admitted he was able to communicate with Mr. Langat, so he could equally have contacted Mr. Karanja Mbugua, who might have consented to an adjournment. No affidavit or statement from Mr. Langat confirmed the holding of brief or his whereabouts at dismissal, leaving the explanation unverified.

p. 2
02

Whether reinstatement would serve any judicial utility

Holding

Reinstatement would be futile because the underlying suit sought to be transferred had already been heard and was pending judgment

Reasoning

The motion sought transfer of Nakuru CM ELC No. 301 of 2018, but that suit had proceeded and was slated for judgment. Reinstating a motion for transfer of a matter already heard would only delay the case and not assist the administration of justice. The applicant's complaint about the conduct of the proceedings did not alter this position.

p. 2
03

Whether the delay in filing the reinstatement application disentitled the applicant to the court's discretion

Holding

The unexplained delay of over two months between dismissal and the reinstatement application was unreasonable and weighed against exercising discretion in the applicant's favour

Reasoning

The application was filed more than two months after the motion was dismissed on 26 February 2019. No explanation was offered for why the applicant waited so long after counsel learned of the dismissal. Unreasonable delay of itself constituted an independent reason to refuse the discretionary relief of reinstatement.

p. 2

Legal principles established

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  • A court is not obliged to grant every adjournment application, and a party who opts not to proceed after an adjournment refusal cannot complain of adverse orders taken in its absence.
  • The court's discretion to reinstate a dismissed application will not be exercised in favour of a party whose application, if reinstated, would serve no judicial utility, and unreasonable delay is a ground for refusing reinstatement.

Court orders

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  1. 1.The application dated 23 April 2019 seeking reinstatement of the motion dated 8 February 2019 is dismissed with costs
  2. 2.The motion seeking transfer of Nakuru CM ELC No. 301 of 2018 remains dismissed with costs
Jurisdiction invoked
Inherent discretion of the High Court (Environment and Land Court) to reinstate a dismissed miscellaneous application, exercised in first-instance judicial review/miscellaneous jurisdiction

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, "Asha Nasieku Teeka & David Saruni Teeka (Suing as the legal representatives of the late Ibrahim Tajeu Teeka-Deceased) v Maren Ole Pilale (Environment and Land Miscellaneous Application 3 of 2019) [2019] KEELC 1925 (KLR)", Case Analysis (2019). Miscellaneous application dated 23 April 2019 (arising from motion dated 8 February 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1925/eng@2019-07-24

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