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ELCPartially AllowedNot stated in the judgment· [2019] KEELC 2130 (KLR)

Peter Kimundi v Government of Makueni County; Mukaa Trading Company Limited (Interested Party) [2019] KEELC 2130 (KLR)

Environment and Land Court of Kenya
30 July 2019
MGMbogo C. G.
1,074 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court reinstated a dismissed land case, ruling that a lawyer's forgotten court date should not punish the client.

What this practically means

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Executive summary

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The court ruled on the Plaintiff/Applicant's undated application filed on 10th April 2018 seeking to set aside and vacate the dismissal orders and all other orders made on 7th November 2017, to reinstate the notice of motion dated 13th June 2017 and the interim orders issued on 15th June 2017, and for costs. The Applicant's advocate deposed that he inadvertently failed to diarize the matter and was unable to attend court on 7th November 2017 when the application was dismissed, and that mistakes of counsel should not be visited on an innocent litigant, invoking Article 50 on fair hearing. The Interested Party, through its director Joseph Kavingu, opposed, contending that the Applicant had lost interest, enjoyed interim orders without prosecuting the suit, ignored notices and a mention notice, and that allowing the application would defeat the overriding objective under Section 1A of the Civil Procedure Act; equity aids the vigilant, not the indolent. The Defendant/Respondent filed no response. The court, applying Shah vs. Mbogo & Another [1967] EA 116, held that failure to diarize the date is an excusable mistake or error and that it would be unjust to visit counsel's mistake on the Plaintiff. It also observed that the Interested Party remains just an interested party, against whom no orders can issue unless it elects to be plaintiff or defendant. The court granted prayer 2 of the application, setting aside the dismissal orders, reinstating the motion of 13th June 2017 and the interim orders of 15th June 2017, with costs in the cause.

Key legal issues

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01

Whether the dismissal orders of 7th November 2017 should be set aside

Holding

The dismissal orders were set aside; failure to diarize the mention date was held an excusable mistake of counsel

Reasoning

The court considered the reasons proffered for non-attendance and applied Shah vs. Mbogo, holding that the discretion to set aside exists to avoid injustice from inadvertence or excusable mistake. It found it unjust to visit the advocate's failure to diarize on the innocent litigant and granted prayer 2.

p. 2
02

Capacity of the Interested Party to oppose the application

Holding

The Interested Party remains merely an interested party against whom no orders can issue unless it elects to be plaintiff or defendant

Reasoning

The court observed that although the Interested Party had filed a replying affidavit and submissions, its status remained that of an interested party, and no orders for or against could be issued against it; full participation required election to a party role.

p. 2

Legal principles established

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  • An interested party remains just an interested party; no orders can be issued for or against it, and to fully participate it must elect to be a plaintiff or defendant
  • The court's discretion to set aside a dismissal/ex parte order is exercised to avoid injustice or hardship from accident, inadvertence or excusable mistake, but not to assist one who deliberately obstructs or delays the course of justice (Shah vs. Mbogo)
  • Failure by counsel to diarize a court date is an excusable mistake and a litigant should not be penalised for the mistake of counsel

Court orders

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  1. 1.Set aside and vacated the dismissal orders and all other orders made on 7th November 2017
  2. 2.Reinstated the notice of motion dated 13th June 2017 for hearing and determination
  3. 3.Reinstated the interim orders issued on 15th June 2017
  4. 4.Costs in the cause

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 50
  • Civil Procedure ActSection 1A

Cases cited (1)

  • Shah vs. Mbogo & Another
    [1967] EA 116
Jurisdiction invoked
Original civil jurisdiction; application under the Civil Procedure Act (Section 1A cited by the parties); Article 50 of the Constitution 2010 cited on the right to fair hearing

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, "Peter Kimundi v Government of Makueni County; Mukaa Trading Company Limited (Interested Party) [2019] KEELC 2130 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2130/eng@2019-07-30

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