John Elias Kirimi v Martin Maina Nderitu & 4 others [2019] KEELC 2380 (KLR)
The bottom line
#A Kenyan court reinstated a land suit dismissed when the plaintiff's lawyer missed the hearing, but ordered the plaintiff to pay Kshs.15,000 in thrown away costs.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit dismissed for non-attendance should be reinstated
The application was allowed; the dismissal was set aside and the suit reinstated on terms as to thrown away costs
The court found the plaintiff's non-attendance was attributable to his advocate's negligence in diarising the hearing date. Noting that the plaintiff's claim was arguable, that he had never sought to delay the hearing, and that given the nature of the subject matter he may not recover adequate compensation from his advocates, the court held justice would not be served by leaving the loss to lie where it falls. The 3rd defendant's claim of prejudice was unsupported by evidence of actual further expenses and was compensable in costs.
Whether the 3rd defendant would suffer irreparable loss if the suit was reinstated
No - the alleged loss was not evidenced and could be compensated in costs
The 3rd defendant contended she had invested further in the suit property and stood to suffer huge financial losses. The court observed that she did not place before the court evidence of further expenses incurred after the dismissal, and was not satisfied that any loss she might suffer could not be compensated in costs if the application were allowed.
Legal principles established
#- The power to reinstate a suit dismissed for non-attendance is discretionary and the court considers the reasons for non-attendance, the arguability of the claim and the conduct of the parties
- A litigant should ordinarily not be punished for the negligence of his advocate where justice demands otherwise, particularly where adequate compensation from the advocate may not be recoverable
- A party opposing reinstatement must place evidence before the court of loss that cannot be compensated in costs
Court orders
#- 1.The order made on 25th January, 2018 dismissing this suit is set aside
- 2.The suit is reinstated for hearing on merit
- 3.The plaintiff shall pay to the 3rd defendant thrown away costs assessed at Kshs.15,000/= forthwith
- Jurisdiction invoked
- Inherent discretionary power of the court to set aside its own orders and reinstate a suit dismissed for non-attendance, exercised in the interest of justice
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "John Elias Kirimi v Martin Maina Nderitu & 4 others [2019] KEELC 2380 (KLR)", Case Analysis (2019). Not stated in the judgment (Notice of Motion dated 12th March, 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2380/eng@2019-07-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.