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ELCAllowed· [2020] KEELC 246 (KLR)

Johnson Otieno Adera v Lucas Angonga & another [2020] KEELC 246 (KLR)

Environment and Land Court (inferred from subject matter and station; not expressly stated in the judgment)
10 December 2020
GOG. M. A. Ongondo
1,908 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

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A Migori court reinstated a landowner's dismissed suit, ruling that his former lawyer's mistake should not cost him his day in court.

What this practically means

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Executive summary

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This ruling disposes of a Notice of Motion dated 9th March 2020 by the plaintiff, Johnson Otieno Adera, seeking reinstatement of his suit dismissed for want of prosecution on 27th June 2019, that the suit proceed to hearing on its merits, and that it be stayed pending establishment and fixation of boundaries of LR No. Kanyamkago/Kanyimach 1381 and LR No. Kanyamkago/Kanyimach 1382. The application was grounded on the applicant's former advocates' failure to file a notice of change of advocates, so the Notice to Show Cause was served on the wrong firm and the applicant was unaware of the dismissal. The respondents opposed, contending the application was vexatious, marked by inordinate delay, and that litigation must come to an end. The court found the dismissal date was 27th June 2019, not 31st July 2017 as the respondents asserted, and applied Shabir Din v Ram Parkash Anand and Philip Chemwolo v Augustine Kubende to hold that counsel's mistake should not be visited on the client. It accepted the delay of eight months and eleven days was explained, and held the applicant was entitled to a fair hearing and access to justice under Articles 48, 50(1) and 25(c) of the Constitution. Noting the consent of 20th September 2017 and that sections 18 and 19 of the Land Registration Act mandate the Land Registrar to deal with boundaries, the court allowed the application in terms of prayers 2, 3 and 4, extended the 2017 boundary-fixation orders for 60 days, and ordered costs of the application to be in the cause.

Key legal issues

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01

Whether the dismissal for want of prosecution should be set aside on account of counsel's mistake

Holding

Yes - service on the former advocates who failed to notify the applicant meant the applicant was denied a fair hearing; the suit was reinstated.

Reasoning

The suit was dismissed on 27th June 2019 after the Notice to Show Cause was served on the applicant's former advocates, M/s Kwengu & Company, who failed to inform him. Relying on Shabir Din v Ram Parkash Anand and Philip Chemwolo v Augustine Kubende, the court held that mistakes of counsel should not be visited on a client, and that the applicant was entitled to a fair hearing under Articles 48, 50(1) and 25(c) of the Constitution.

p. 3
02

Whether the delay of about eight months in filing the application was inordinate

Holding

No - the delay was explained by the applicant's lack of awareness of the notice to show cause due to his former counsel's mistake.

Reasoning

The application was filed eight months and eleven days after the dismissal order. The court, noting Order 51 Rule 8 on computation of days, accepted the applicant's explanation that he was unaware of the notice to show cause because his former counsel failed to bring it to his attention, so no inordinate unexplained delay was found.

p. 2
03

Whether the reinstated suit could be stayed pending boundary fixation

Holding

Yes - the court stayed the suit pending establishment and fixation of boundaries, extending the 20th September 2017 orders for 60 days.

Reasoning

Sections 18 and 19 of the Land Registration Act mandate the Land Registrar to deal with boundaries of registered land. There was a prior consent of counsel dated 20th September 2017 and an order of 31st July 2017 directing the Land Registrar and Surveyor to establish and fix boundaries of the two parcels; the court exercised its discretion to keep that regime in place after reinstatement.

p. 3

Legal principles established

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  • The mistake of counsel should not be visited upon a client
  • A party should not suffer the penalty of not having a case determined on its merits merely because a mistake has been made
  • The right to be heard before an adverse decision is taken against a person is fundamental and permeates the entire justice system

Court orders

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  1. 1.The application dated 9th March 2020 allowed in terms of orders 2, 3 and 4 sought therein
  2. 2.The orders of 27th June 2019 dismissing the suit set aside and the plaintiff's suit reinstated
  3. 3.The plaintiff's suit to proceed for hearing and be determined on its merits
  4. 4.The plaintiff's suit stayed pending establishment and fixation of boundaries for LR No. Kanyamkago/Kanyimach 1381 and LR No. Kanyamkago/Kanyimach 1382 by the Registrar and Surveyor as directed by the court order
  5. 5.The orders of the court given on 20th September 2017 extended for compliance by the Migori Land Registrar and County Surveyor within the next 60 days from that date, and those orders to be served accordingly
  6. 6.Costs of the application to be in the cause

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A
  • Civil Procedure Rules, 2010Order 12 Rule 7; Order 51 Rules 1, 8 and 15; Order 17 Rule 2
  • Constitution of Kenya, 2010Articles 10(2)(b), 25(c), 48, 50(1), 159(1), 159(2)(d)
  • Land Registration ActSections 18 and 19

Cases cited (12)

  • Teleposta Pension Scheme Registered Trustee =vs= Vicky Khadaka Liyai and 2 others
    (2020) eKLR
  • Jim Rogers Gitonga Njeru =vs= Al Hussein Motors Ltd and 2 others
    (2018) eKLR
  • Ali Farah (suing as the legal administrator of the estate of Farah Awad Gullet (deceased) =vs= Oloirien Group Ranch & another
    (2018) eKLR
  • Shabir Din =vs= Ram Parkash Anand
    (1955) EACA Vol. 22 page 48
  • Philip Chemwolo & another =v= Augustine Kubende
    (1982-88) KAR 103
  • Andrew Mangwa =vs= Josephat Ondieki Kehati
    (2017) eKLR
  • Oraro =vs= Mbaja
    (2005) 1 KLR 142
  • Macharia Mwangi Maina and 87 others =vs= Davidson Mwangi Kagiri
    (2014) eKLR
  • Re-Hebtulla Properties Ltd
    (1976-80) 1 KLR 1195
  • James Kanyiita and another =vs= Marios Philotas Ghikas and another
    (2016) eKLR
  • Onyango Oloo =vs= Attorney General
    (1986-1989) EA 456
  • Sangram Singh =vs= Election Tribunal Koteni
    AIR 1955 SC 664
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act; Order 12 Rule 7 and Order 51 Rules 1 and 15 of the Civil Procedure Rules; Article 159(2)(d) of the Constitution of Kenya, 2010

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Johnson Otieno Adera v Lucas Angonga & another [2020] KEELC 246 (KLR)", Case Analysis (2020). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/246/eng@2020-12-10

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