Joseph Kathuri Mugo v James Gicobi Karanja [2019] KEELC 2467 (KLR)

Environment and Land Court

28 June 2019

ECE.C. Cherono

675 words in judgment

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The bottom line

A Kenyan court reinstated a land suit dismissed when the plaintiff missed the hearing, but ordered the plaintiff to pay the defendant Kshs.5,000 in thrown away costs.

What this practically means

Executive summary

The Plaintiff/Applicant moved the Environment and Land Court at Kerugoya by Notice of Motion dated 12th June 2019, brought under Section 3A of the Civil Procedure Act and Order 10 Rule 11 of the Civil Procedure Rules, seeking reinstatement of the suit and costs in the cause. The suit had been dismissed on 11th June 2019 for non-attendance and want of prosecution when neither the plaintiff nor his advocate was present when the matter was called out shortly before 1.00 p.m., having been allocated for hearing at 12.30 p.m. In his supporting affidavit, Mr. Maina Kagio Advocate explained that he had an urgent personal matter in the morning, sent an advocate (Ms Nyangati) to hold his brief and request that the matter be stood aside, and arrived at the court slightly past 1.00 p.m., by which time the suit had been dismissed. Mr. John Ndana Advocate, for the defendant, deponed that no explanation had been given for the plaintiff's absence. The court, E.C. Cherono J, exercised its discretion under Section 3A CPA and Order 10 Rule 11 CPR, holding that the explanations for non-attendance were reasonable and satisfactory, that the application was brought timeously the following day under certificate, and that the delay was not deliberate, with any inconvenience compensable by costs. The court set aside the dismissal order of 11.6.2019, reinstated the suit, and awarded the defendant thrown away costs of Kshs.5,000/= payable by the plaintiff. Judgment was delivered in open court at Kerugoya on 28th June 2019.

Key legal issues

Whether the dismissal of the suit for non-attendance ought to be set aside

Holding

The application was allowed; the dismissal order of 11.6.2019 was set aside and the suit reinstated upon payment of thrown away costs.

Reasoning

The court found the advocate's explanation - that he had a personal issue in the morning, sent an advocate to hold his brief and to request the matter be stood aside, and arrived shortly after 1.00 p.m. when the matter had already been called out and dismissed - to be reasonable and satisfactory. The application was filed the following day under certificate, showing promptness. The delay was not deliberate and the defendant could be compensated by costs.

p. 1

Legal principles established

An application under Section 3A CPA and Order 10 Rule 11 CPR is discretionary and must be exercised judicially, not whimsically
A dismissal for non-attendance may be set aside where the delay was not deliberate and the inconvenience to the opposite party can be compensated by costs

Court orders

1.The order of the Court issued on 11.6.2019 dismissing the suit for non-attendance and want of prosecution is set aside
2.The suit is reinstated
3.The Plaintiff/Applicant to pay the Defendant/Respondent thrown away costs of Kshs.5,000/=

Authorities

Legislation

Civil Procedure ActSection 3A
Civil Procedure RulesOrder 10 Rule 11

Jurisdiction invoked: Section 3A Civil Procedure Act and Order 10 Rule 11 Civil Procedure Rules

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Joseph Kathuri Mugo v James Gicobi Karanja [2019] KEELC 2467 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2467/eng@2019-06-28

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