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ELCPartially Allowed· [2019] KEELC 2334 (KLR)

Margaret Njeri Gathu v Anthony Githaiga Kabaru [2019] KEELC 2334 (KLR)

Environment and Land Court
16 July 2019
JKJ.G. Kemei
909 words in judgment
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The bottom line

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Kenya's Environment and Land Court reinstated a dismissed application filed promptly, but the late applicant's lawyer must pay the costs.

What this practically means

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Executive summary

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This Environment and Land Court ruling at Murang'a by J.G. Kemei, Judge, determined a Notice of Motion dated 28th March 2019 in which the Plaintiff/Applicant sought reinstatement of its earlier application dated 21st February 2019, which had been dismissed for non-attendance on 18th March 2019 when the Applicant's Counsel, William N. Onwang'a, arrived late due to what he described as unavoidable circumstances. The 21st February 2019 application sought execution of the court's judgment delivered on 31st May 2018 and orders issued on 13th December 2018, the Defendant/Respondent having refused to vacate the property. The reinstatement application, brought under section 3A of the Civil Procedure Act and invoking Order 12 Rule 7, was unopposed, the Respondent having been duly served but filing no response. The court held that Counsel's bare assertion of unavoidable circumstances was insufficient, since the circumstances ought to have been detailed to enable the court to assess their veracity, and reminded Counsel of his duty to attend court punctually. Applying the principles in Shah v Mbogo and Patel v East Africa Cargo Handling Services Ltd, now grounded in section 3A, the court found the discretion to set aside ex parte orders is meant to avoid injustice from accident, inadvertence or excusable mistake, not to assist deliberate obstruction. Finding the application brought timeously and the Applicant's actions not intended to delay justice, the court allowed the application, reinstated the 21st February 2019 application, and ordered costs payable by the Applicant.

Key legal issues

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01

Whether the dismissal for non-attendance should be set aside

Holding

The application to reinstate was allowed because it was brought timeously and the Applicant's actions were not meant to obstruct or delay the course of justice

Reasoning

The court applied the Shah v Mbogo and Patel principles for setting aside ex parte orders, now anchored in section 3A of the Civil Procedure Act. Though Counsel's explanation of 'unavoidable circumstances' was vague, the court found the application was made promptly and that no deliberate obstruction was intended, so reinstatement served the ends of justice. The court noted the litigant may have recourse against his own Counsel.

p. 2
02

Whether mistakes of Counsel should be visited upon the litigant

Holding

The court acknowledged the principle that mistakes of Counsel should not be visited on the litigant, while noting the Applicant could have recourse against his Counsel in law

Reasoning

Counsel took blame squarely for his lateness and apologized. The court stated it was enjoined not to visit Counsel's mistakes on the litigant, but observed that the litigant is not without remedy since he can pursue his advocate for any loss arising. This did not, however, excuse Counsel's obligation to attend court on time.

p. 2

Legal principles established

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  • The discretion to set aside an ex parte order is intended to avoid injustice or hardship from accident, inadvertence or excusable mistake, not to assist a person who has deliberately obstructed or delayed the course of justice
  • A party should not merely cite 'unavoidable circumstances' without detailing them; the court must be given an opportunity to assess the veracity of the reasons given

Court orders

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  1. 1.The application dated 28th March 2019 is allowed
  2. 2.The application dated 21st February 2019 (seeking execution of the judgment of 31st May 2018 and orders of 13th December 2018) is reinstated
  3. 3.Costs shall be payable by the Applicant

Authorities

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Legislation

  • Civil Procedure RulesOrder 12 Rule 7
  • Civil Procedure ActSection 3A

Cases cited (2)

  • Shah v Mbogo
    (1967) EA 116
  • Patel v East Africa Cargo Handling Services Ltd
    (1974) EA 75
Jurisdiction invoked
Section 3A of the Civil Procedure Act (inherent power) and Order 12 Rule 7 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, "Margaret Njeri Gathu v Anthony Githaiga Kabaru [2019] KEELC 2334 (KLR)", Case Analysis (2019). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2334/eng@2019-07-16

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