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ELCDismissedNot stated in judgment· [2019] KEELC 4110 (KLR)

Joel Gitau Macharia & 8 others v Mary Mwago Njuguna & another [2019] KEELC 4110 (KLR)

Environment and Land Court
21 March 2019
JKJ G Kemei
747 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 reinstate a land suit because the plaintiffs and their lawyer gave no credible explanation for missing the hearing date.

What this practically means

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Executive summary

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The Plaintiffs (Applicants) moved the court by a notice of motion dated 14/11/2018 under Order 12 rules 1 and 7 and Order 51 rule 1 of the Civil Procedure Rules, seeking the setting aside of dismissal orders made on 14/11/18 and reinstatement of their suit. The background was a history of failed hearing dates: the suit was dismissed on 26/9/18 under Order 12 rule 1 when parties and counsel were absent; an application dated 31/10/18 seeking to set aside that dismissal was itself dismissed on 14/11/18 for non-attendance, prompting this swift fresh application. Ruth Maina Advocate swore a supporting affidavit asserting she attended court on 14/11/18 and consulted an unnamed court clerk, only to later discover the case had been dismissed. The 1st Respondent opposed, terming the application an abuse of process and highlighting the Plaintiff's mix-up of applications and lack of a plausible explanation for the lateness; the 2nd Respondent filed no response. The court, per J G Kemei J, found no record of Ms Maina's attendance on the material date, questioned why an advocate would consult a clerk instead of addressing the court, and concluded counsel was misleading the court. No affidavit from the Plaintiffs explained their own absence. Holding that no plausible reason was advanced for the non-attendance of either counsel or the litigants, the court declined to exercise its discretion in the Applicants' favour and dismissed the application dated 14/11/18 with costs to the Respondents. The underlying suit remained dismissed.

Key legal issues

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01

Whether to set aside dismissal for non-attendance under Order 12

Holding

The application was dismissed because no explanation was offered for the non-attendance of Counsel and the Plaintiffs, and Counsel's affidavit account was disbelieved

Reasoning

The record did not show that Ms Ruth Maina attended court on 14/11/18. Her claim to have consulted an unnamed court clerk, rather than addressing the court, led the court to conclude she was misleading it. The Plaintiffs also filed no affidavit explaining their absence, so the discretion under Order 12 rule 7 was not exercised in their favour.

p. 2

Legal principles established

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  • Advocates are officers of the Court and owe duties to both their clients and the Court to facilitate the smooth administration of justice
  • A party seeking reinstatement of a suit dismissed for non-attendance must give a plausible reason for the non-attendance of both Counsel and the litigants

Court orders

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  1. 1.The application dated 14/11/18 is dismissed
  2. 2.Costs of the application awarded to the Respondents

Authorities

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Legislation

  • Civil Procedure RulesOrder 12 rule 1
  • Civil Procedure RulesOrder 12 rule 7
  • Civil Procedure RulesOrder 51 rule 1
Jurisdiction invoked
Order 12 rule 1 and 7 and Order 51 rule 1 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, "Joel Gitau Macharia & 8 others v Mary Mwago Njuguna & another [2019] KEELC 4110 (KLR)", Case Analysis (2019). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4110/eng@2019-03-21

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