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ELCAllowedNot stated in the judgment· [2020] KEELC 330 (KLR)

Fatuma Hamisi Mwarasi v Orini Limited, Reefview Investments Ltd & 3 others [2020] KEELC 330 (KLR)

Environment and Land Court
7 December 2020
CYC.K. Yano
1,049 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Mombasa court reinstated a land suit dismissed after her lawyers missed the hearing, ruling the mistake was excusable.

What this practically means

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Executive summary

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The Plaintiff moved the court by Notice of Motion dated 3rd March 2020 seeking to set aside and vary the order of 28th January 2020 dismissing her suit for non-attendance, and to have it reinstated for hearing on merit. She explained that her former advocates, Messrs Oduor Siminyu & Company Advocates, neither attended the hearing nor informed her or the Defendants of the hearing date, and that the parties had executed a consent intended to compromise the suit. The 1st Defendant opposed, blaming the Plaintiff for inactivity since 2016 and arguing the court was functus officio. The 3rd and 4th Defendants filed grounds of opposition, noting the hearing date was taken by consent and that the court had properly exercised its discretion under Order 12 Rule 3. The court framed a single issue: whether to set aside the dismissal order and reinstate the suit. Relying on Shah v Mbogo (1967) EA 116, the court held the discretion to set aside dismissal orders exists to avoid injustice from accident, inadvertence or excusable mistake, not to aid deliberate obstruction. It found the Plaintiff's non-attendance was neither intentional nor deliberate, that the application was filed without delay, and that no prejudice to the Defendants was demonstrated. Invoking the overriding objective, the court allowed the application, set aside the dismissal order, reinstated the suit for hearing on merit, and ordered that costs of the application be in the cause. Judgment was delivered virtually at Mombasa on 7th December 2020 by C.K. Yano, Judge.

Key legal issues

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01

Whether to set aside and reinstate a suit dismissed for non-attendance under Order 12 Rule 3

Holding

The dismissal was set aside where the Plaintiff's failure to attend was inadvertent, not deliberate, and no prejudice was shown by the Defendants

Reasoning

The court applied Shah v Mbogo: the discretion exists to relieve against inadvertence or excusable mistake, not to reward deliberate obstruction. The Plaintiff's former advocates failed to attend and failed to inform her of the hearing date. The application was filed without delay about six weeks after dismissal. The parties had also executed a consent intended to compromise the suit. No prejudice to the Defendants was demonstrated, and the overriding objective favoured a hearing on the merit.

p. 2

Legal principles established

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  • The discretion to set aside dismissal orders is meant to avoid injustice or hardship from accident, inadvertence or excusable mistake, not to assist a party who deliberately obstructed or delayed justice

Court orders

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  1. 1.The Order made on 28th January 2020 dismissing the Plaintiff's suit for non-attendance is set aside
  2. 2.The suit is reinstated for hearing and determination on merit
  3. 3.Costs of the application shall be in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 12 Rule 3
  • Civil Procedure RulesOrder 12 Rule 7

Cases cited (1)

  • Shah –v- Mbogo
    (1967) EA 116
Jurisdiction invoked
Inherent jurisdiction and Order 12 Rule 7 of the Civil Procedure Rules (application to set aside dismissal under Order 12 Rule 3)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Fatuma Hamisi Mwarasi v Orini Limited, Reefview Investments Ltd & 3 others [2020] KEELC 330 (KLR)", Case Analysis (2020). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/330/eng@2020-12-07

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