Rumba Kinuthia t/a Rumba Kinuthia & Co Advocates v Ngimu Farm Co Ltd & 3 others [2020] KEELC 421 (KLR)
The bottom line
#Kenya's Environment and Land Court reinstated a dismissed land case because the delay was careless, not deliberate, but imposed strict deadlines and costs.
What this practically means
#Executive summary
#Key legal issues
#Whether the dismissal of the application dated 8/8/19 for want of prosecution should be set aside under Order 12 Rule 7
Yes, the dismissal was set aside on conditions, since the Court was not shown evidence that the Applicant's conduct was meant to obstruct or delay the cause of justice, despite the Advocate's dereliction of duty in ignoring hearing notices.
Order 12 Rule 7 confers a discretionary power to set aside dismissals upon such terms as may be just. Guided by Patel v East Africa Handling Services and Shah v Mbogo, the Court's main concern is to do justice. Although the Applicant's Counsel was absent on several dates and ignored a duly served hearing notice - conduct amounting to dereliction of duty - there was no evidence of deliberate obstruction or delay. The Court therefore reinstated the application subject to strict conditions: hearing within 15 days, throw away costs, and costs of the application to the Plaintiff.
Whether an Advocate who ignores a hearing notice is culpable
An Advocate must not ignore a hearing notice on a matter they have conduct of; doing so is dereliction of duty as an officer of the Court.
The Applicant contended it was unaware that directions requiring written submissions had been varied to require oral hearing. The Plaintiff maintained that a hearing notice is clear and needs no interpretation. The Court held that the Advocate was at fault for ignoring a duly served hearing notice and characterised this as dereliction of the Advocate's duty as an officer of the Court, though this did not by itself warrant refusal of the setting-aside application.
Legal principles established
#- The discretion to set aside a judgment or dismissal order under Order 12 Rule 7 is exercised to do justice to the parties, guided by the principles in Shah v Mbogo - to avoid injustice or hardship from accident, inadvertence or excusable mistake, not to assist a party who deliberately obstructs or delays the cause of justice.
Court orders
#- 1.The application dated the 8/8/19 is reinstated on condition that it be fixed for hearing within the next 15 days, in default it shall stand dismissed
- 2.The Applicant shall pay the Plaintiff throw away costs of Kshs 5,000/- payable before the next hearing date
- 3.Costs of the application shall be in favour of the Plaintiff/Respondent
- Jurisdiction invoked
- Order 12 Rule 7 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Rumba Kinuthia t/a Rumba Kinuthia & Co Advocates v Ngimu Farm Co Ltd & 3 others [2020] KEELC 421 (KLR)", Case Analysis (2020). Not stated in the judgment (application dated 10/2/2020 within a suit; underlying Notice of Motion dated 8/8/19). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/421/eng@2020-12-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.