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ELCPartially AllowedNot stated in the judgment (application dated 16/5/2019)· [2019] KEELC 2075 (KLR)

Joseph Pkerker Ngolepus v William Lonapa [2019] KEELC 2075 (KLR)

Environment and Land Court
30 July 2019
2,166 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Kitale restored a land case dismissed after the plaintiff's lawyer missed a hearing, ruling clients shouldn't suffer for counsel'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 Kitale (Mwangi Njoroge, J) on the plaintiff's notice of motion dated 16/5/2019. The plaintiff sought to set aside an order of 11th February 2019 dismissing his suit over Plot No. D/3 Makutano Town in West Pokot County for non-attendance, and a temporary injunction restraining the defendant from constructing, demolishing buildings or harassing tenants pending hearing. The plaintiff blamed his erstwhile advocate for taking a hearing date by consent on 8/11/2018 and failing to communicate it or attend court. The respondent opposed, asserting delay, that the plaintiff had no tenants, and that he (defendant) had been in control of and developed the premises since an earlier application for injunction was dismissed on 26/3/2018. The court noted the date was taken by consent of counsel, but found no evidence controverting the plaintiff's averment that counsel failed him, such matters being privileged. Relying on Belinda Murai vs Amoi Wainaina and related authorities, the court held that mistakes of counsel are pardonable where justice dictates rectification, and distinguished Ewoton Leonard Ekutian because the plaintiff specifically addressed his counsel's absence. It also found irregularity in the defendant extracting a decree when his counterclaim remained pending and unheard. The court allowed the application in terms of prayers (3), (4), (5) and (6): setting aside the dismissal, granting a temporary injunction/status quo, and directing early hearing. Costs of the application were made costs in the cause.

Key legal issues

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01

Whether the plaintiff's blame of his erstwhile advocate justified setting aside the dismissal for non-attendance

Holding

Yes. The court found the plaintiff's narrative showed a probability he was failed by his advocate, and the defendant did not controvert the averments; mistakes of counsel have frequently formed the basis of setting aside orders.

Reasoning

The court noted the hearing date was taken by consent of the advocates, but found no evidence controverting the plaintiff's sworn averment that counsel never communicated the date. Relying on Belinda Murai and other authorities, the court held that counsel's mistake is pardonable and should not be visited on the client where justice so dictates, and that the pending counterclaim made restoration of the suit appropriate.

p. 2
02

Whether the court's discretion should nonetheless be declined on account of delay or obstruction

Holding

No. The court distinguished the Ewoton Leonard Ekutian case because the applicants here specifically addressed their counsel's absence, and exercised its discretion in the plaintiff's favour.

Reasoning

The court acknowledged that conduct aimed at delaying or obstructing proceedings will not be condoned, citing the Ewoton and Patel authorities. However, it found the instant plaintiff had specifically explained his counsel's absence, unlike the applicants in Ewoton, and that the defendant's extraction of a decree while the counterclaim remained unheard was irregular.

p. 3
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Whether a temporary injunction/status quo order should issue pending hearing

Holding

Yes, granted as part of prayers (3), (4), (5) and (6), particularly given the pending counterclaim and the defendant's control of the premises.

Reasoning

The court found the application had merit because the counterclaim was still pending and evidence for it would overlap with the plaintiff's case; preserving the position pending hearing served both parties. The defendant's claim to have developed the premises did not defeat the application.

p. 3

Legal principles established

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  • A mistake by counsel should not permanently close the door of justice where the interests of justice dictate rectification
  • The court's discretion to set aside judgment is broad but is not designed to assist deliberate obstruction or delay
  • A party who was availed a chance to be heard but was locked out by his own unexplained default cannot invoke Article 50 to reopen proceedings

Court orders

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  1. 1.Application dated 16/5/2019 granted in terms of prayer No. (3), (4), (5) and (6)
  2. 2.Temporary injunction restraining the defendant from constructing, demolishing any building and/or harassing tenants on Plot No. D/3 Makutano Town, and/or maintenance of the status quo pending interpartes hearing
  3. 3.Order of 11th February 2019 dismissing the suit for non-attendance set aside
  4. 4.Interim orders to operate till hearing and determination of the suit
  5. 5.Matter to be fixed for hearing
  6. 6.Costs of the application to be in the cause

Authorities

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Legislation

  • Civil Procedure Act Cap 21Sections 1A, 1B, 3A, 3(c) and (e)
  • Civil Procedure RulesOrder 50 Rule 1
  • Constitution of KenyaArticle 50

Cases cited (8)

  • Jane Kanda Kipkorir -vs- Dorcas Chebet & Others
    Kitale Land Case No. 86 of 2010 (eKLR)
  • Marcellus Lazima Chegge -vs- Mary Mutoro Sirengo & Others
    Kitale ELC No. 97 of 2008
  • Belinda Murai & others vs Amoi Wainaina
    [1978] KLR 2782 (CALL)
  • Joseph Mweteri Igweta -vs- Mukira M'Ethare & Attorney General
    2002 [eKLR]
  • Ewoton Leonard Ekutian Pius Atok Ewoton Versus Michael Kore Rotich and others
    Kitale Land Case No. 87 of 2009
  • Patel -vs- E A Cargo Handling Service Ltd
    [1974] EA 75
  • Shah -vs- Mbogo
    1967 EA 116
  • Mbogo -vs- Shah
    [1986] EA 93
Jurisdiction invoked
Sections 1A, 1B, 3A, 3(c) and (e) of the Civil Procedure Act Cap 21 and Order 50 Rule 1 of the Civil Procedure Rules

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, "Joseph Pkerker Ngolepus v William Lonapa [2019] KEELC 2075 (KLR)", Case Analysis (2019). Not stated in the judgment (application dated 16/5/2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2075/eng@2019-07-30

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