Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCAllowedNot stated in judgment· [2019] KEELC 2906 (KLR)

Samuel M Wang’ombe v Charles Muriithi Nyamu [2019] KEELC 2906 (KLR)

Environment and Land Court
25 June 2019
MOM.C. Oundo
1,996 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

#

Kenya's Environment and Land Court reinstated a dismissed land suit, holding a client should not suffer for their lawyer's mistake when the delay is honestly explained.

What this practically means

#

Executive summary

#
The Plaintiff moved the court by Notice of Motion dated 8th February 2019 under Order 9 Rules 9 and 10 and Order 12 Rule 7 of the Civil Procedure Rules, seeking to set aside the orders of 13th November 2017 dismissing his suit with costs for non-attendance. The application was canvassed by written submissions by consent. The Plaintiff attributed the dismissal to a breakdown in communication between him and his former counsel, M/S Kimatta & Co Advocates, arising after his retirement and relocation from Nairobi to Thika, and relied on authorities including Belinda Murai v Amos Wainaina and Wachira Karani v Bildad Wachira. The Defendant opposed, contending that the Plaintiff, who filed the suit in 2012, had been indolent, had never been desirous of prosecuting the matter, and that counsel had personally notified him of hearing dates; the Defendant relied on Shah v Mbogo and other authorities on inordinate delay and good faith. The court held that the power to set aside a dismissal is discretionary and aimed at doing justice between the parties, and that an advocate's mistake should not weigh unduly against a client. Perusing the entire record, the court was satisfied that the advocate and his client were not guilty of inaction, that the delay was adequately explained, and that the Defendant's submissions were unconvincing and inconsistent with the overriding objective under Sections 1A and 1B of the Civil Procedure Act. The application was allowed with costs in cause; the dismissal order was set aside and the suit reinstated to be heard expeditiously.

Key legal issues

#
01

Whether the dismissal of the Plaintiff's suit for non-attendance should be set aside under Order 12 Rule 7

Holding

The application was allowed; the delay/lapse was adequately explained and the dismissal order was set aside with the suit reinstated.

Reasoning

The court applied Order 12 Rule 7 and the overriding objective under Sections 1A and 1B of the Civil Procedure Act. Relying on Belinda Murai v Amos Wainaina and Gurcharn Singh, it held that an advocate's mistake should not weigh unduly against the client. The court perused the entire record and was satisfied that the advocate and client were not guilty of inaction and that the delay was adequately explained. The Defendant's submissions were rejected as unconvincing.

p. 3
02

Whether the Plaintiff's 2 1/2 month delay in filing the application constituted inordinate delay

Holding

The court found the delay adequately explained and not inordinate in the circumstances.

Reasoning

The court considered whether the filing of the application 2 1/2 months after the dismissal order constituted inordinate delay, and concluded on the whole record that the lapse was adequately explained and that neither the advocate nor the client was guilty of inaction, so the application was allowed.

p. 2

Legal principles established

#
  • The power to set aside a judgment or dismissal is a discretionary power exercised with the main aim of doing justice between the parties.
  • An advocate's mistake should not weigh unduly against the client; where the litigant shows his default was due to the advocate's mistake, the court should consider the application with broad understanding unless injustice would be occasioned to the other party.

Court orders

#
  1. 1.The Notice of Motion dated 8th February 2019 is allowed
  2. 2.The order of 13th November 2017 dismissing the Plaintiff's suit for want of prosecution is set aside and the suit is reinstated
  3. 3.The reinstated case is to be heard expeditiously
  4. 4.Costs in cause
Jurisdiction invoked
Order 9 Rules 9 and 10 and Order 12 Rule 7 of the Civil Procedure Rules and all enabling provisions of the law

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Samuel M Wang’ombe v Charles Muriithi Nyamu [2019] KEELC 2906 (KLR)", Case Analysis (2019). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2906/eng@2019-06-25

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