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ELCDismissed· [2019] KEELC 3327 (KLR)

Lazarus Muvuva Syano & another v Boniface Nzyoka Syano [2019] KEELC 3327 (KLR)

Environment and Land Court
2 May 2019
MGMBOGO C. G.
1,468 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to revive a land case dismissed after the plaintiff missed a hearing, ruling that 'phone problems' don't excuse ignoring your own lawsuit.

What this practically means

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Executive summary

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The 1st Plaintiff/Applicant, Lazarus Muvuva Syano, moved the Environment and Land Court at Makueni by Notice of Motion dated 31st July 2018 seeking to set aside the orders of 20th November 2017 by which the suit was dismissed for want of prosecution, and to have the case heard on its merits. The application, supported by his affidavit, was premised on a claimed breakdown in communication with his advocates caused by phone problems, and on the assertion that setting aside would cause no prejudice to the Defendant. The Defendant/Respondent, Boniface Nzyoka Syano, opposed the application in a replying affidavit, characterising it as made in bad faith and founded on deceit, and asserting that the Plaintiffs' counsel had ample opportunity to contact the clients, had fixed the hearing date by consent, and that the Applicants ought to have physically visited their advocate's chambers. Both parties filed written submissions, the Plaintiffs relying on Mbogo & Another v Shah and related authorities, and the Defendant relying on Utalii Transport Company Ltd v NIC Bank. The court found that the explanation of phone issues did not amount to accident, inadvertence or excusable mistake; the applicant knew his advocates' chambers and never visited them; and his conduct portrayed indolence. Applying the Shah v Mbogo principles, the court held that the right to a hearing cannot be extended to an indolent person. The application was dismissed with costs to the Defendant/Respondent.

Key legal issues

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01

Whether the delay and non-attendance on 20th November 2017 were excusable

Holding

The non-attendance was not excusable; the claimed phone issues did not amount to accident, inadvertence or excusable mistake, and the applicant knew where his advocates' chambers were located but never visited or otherwise followed up

Reasoning

The 1st Plaintiff premised the application solely on phone problems preventing communication with his advocate. Hearing had been fixed on 20th September 2017 for 20th November 2017, giving two months' notice. He was silent on whether his co-applicant had a phone, never visited the advocates' chambers, and took no steps to inquire about the suit until December 2017. The court agreed this conduct portrayed indolence and declined to exercise its discretion in his favour.

p. 2
02

Whether the discretion to set aside a dismissal for want of prosecution should be exercised in favour of the Applicants

Holding

The discretion was refused. Following Shah v Mbogo, the discretion exists to avoid injustice or hardship from accident, inadvertence or excusable mistake, not to assist a party who obstructs or delays the cause of justice

Reasoning

The court adopted the principles in Shah v Mbogo as correctly cited by the Plaintiffs' counsel, and concluded that failure to communicate due to phone issues fell outside the category of accident, inadvertence or excusable mistake. Balancing the constitutional right to a hearing against the party's indolence, the court held the right cannot be extended to an indolent person, and dismissed the application.

p. 2

Legal principles established

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  • The court's discretion to set aside an ex parte judgment or dismissal is intended to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake, but not to assist a person who has deliberately sought to obstruct or delay the cause of justice
  • The constitutional right to a hearing cannot be extended to an indolent party who fails to take steps to follow up their case

Court orders

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  1. 1.The Notice of Motion application dated 31st July 2018 is dismissed
  2. 2.Costs of the application awarded to the Defendant/Respondent

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B
  • Environment and Land Court ActSections 3 and 13(7)
  • Constitution of Kenya, 2010Article 159
  • Practice Directions on Proceedings in the Environment and Land Courts, and on Proceedings Relating to Environment and the Use and Occupation of, and Title to Land and Proceedings in other CourtsParagraph 28(1)
  • Civil Procedure RulesOrder 11

Cases cited (5)

  • Mbogo & Another vs. Shah [1968] EA
    [1968] EA
  • Burhani Decorators & Contractors vs. Morning Foods Ltd. & Another [2014] eKLR
    [2014] eKLR
  • Paul Asin T/A Asin Supermarket vs. Peter Mukembi [2013] eKLR
    [2013] eKLR
  • Utalii Transport Company Ltd & 3 others vs. NIC Bank & Another [2014] eKLR
    [2014] eKLR
  • Shah vs. Mbogo & Another [1967] EA 116
    [1967] EA 116
Jurisdiction invoked
Sections 3 and 13(7) of the Environment and Land Court Act, No. 19 of 2011; Sections 1A, 1B of the Civil Procedure Act (Cap 21); Article 159 of the Constitution of Kenya, 2010; Paragraph 28(1) of the Practice Directions on Proceedings in the Environment and Land Courts

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, "Lazarus Muvuva Syano & another v Boniface Nzyoka Syano [2019] KEELC 3327 (KLR)", Case Analysis (2019). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3327/eng@2019-05-02

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