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ELCPartially AllowedNot stated in the judgment· [2020] KEELC 456 (KLR)

Daniel Kirumbi Njoroge v Christopher Kangethe Kigwe [2020] KEELC 456 (KLR)

Environment and Land Court
26 November 2020
1,522 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court allowed a widow to take over her late husband's land case, reinstating it after dismissals caused by illness, death, and a lawyer's non-attendance.

What this practically means

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Executive summary

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The deceased, Daniel Kirumbi Njoroge, had sought extension of time to file an originating summons to enforce a 1998 land sale agreement against the respondent. That motion was dismissed for non-attendance by Okongo J on 9/2/2017, and a subsequent reinstatement application was dismissed for non-attendance by Eboso J on 17/12/2018. The deceased died on 4/3/2019, and his widow, Eunice Mukami Ndungu Njoroge, moved the court by notice of motion dated 10/9/2020 seeking substitution in place of her husband and reinstatement of the application dated 13/2/2017. The respondent opposed on grounds of locus standi, res judicata, lack of explanation for non-attendance, inordinate delay, and limitation under Section 7 of the Limitation of Actions Act. Eboso J framed three questions and held that the applicant, holding a grant of letters of administration, had locus standi under Order 24 rule 7(2) of the Civil Procedure Rules; that her explanation of the deceased's illness, death and retained counsel satisfied the criteria for setting aside the 17/12/2018 dismissal, applying Mbogo v Shah, Belinda Murai v Amoi Wainaina and Philip Chemwolo v Augustine Kubede; that res judicata did not apply because the earlier dismissals were not on the merits; and that only Okongo J could set aside his own order of 9/2/2017. The court substituted the applicant, reinstated the 13/2/2017 motion, directed a mention before Okongo J for directions, and awarded the respondent throwaway costs of Kshs 15,000 payable within 30 days, failing which the reinstatement would stand vacated.

Key legal issues

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01

Locus standi of the applicant to seek substitution and reinstatement

Holding

The applicant, as widow and administrator of the deceased's estate with a grant of letters of administration, has locus standi to be substituted and to apply to set aside the dismissal of 17/12/2018.

Reasoning

The court noted the applicant exhibited a death certificate showing the deceased died on 4/3/2019 and a grant of letters of administration issued by the Ruiru Senior Resident Magistrate's Court on 7/7/2020. Being a lay person acting in person, she could only invoke the framework of Order 24 rule 7(2) of the Civil Procedure Rules, which the court found apt. On that basis her locus standi was established notwithstanding the respondent's objection that she was a stranger without leave.

p. 2
02

Whether grounds existed to set aside the dismissal order of 17/12/2018

Holding

The applicant's explanation - that the deceased had retained an advocate with full instructions and that the deceased fell ill and died in the material period - satisfied the criteria for setting aside the dismissal.

Reasoning

The court applied the principles in Mbogo v Shah, Belinda Murai v Amoi Wainaina and Philip Chemwolo v Augustine Kubede that discretion to set aside dismissal orders exists to rectify mistakes and avoid locking a party out of justice, absent fraud or intent to overreach. The applicant's explanation of the advocate's non-attendance and the deceased's illness and death fell within these principles, and the respondent could be indemnified through a modest award of costs.

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03

Res judicata objection

Holding

Res judicata does not apply where prior applications were dismissed for non-attendance and not heard and determined on merit.

Reasoning

The respondent argued that the present application was incompetent because a similar preceding application had been dismissed. The court rejected this, holding the doctrine of res judicata requires a hearing and determination on the merits, which was absent here since both earlier applications were dismissed for non-attendance. The application merely sought reinstatement of dismissed applications, so the doctrine had no application.

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04

Proper forum for setting aside the 9/2/2017 dismissal order

Holding

Okongo J, who made the 9/2/2017 dismissal order and remains in the Station, is the proper Judge to review or set aside that order.

Reasoning

The court declined to exercise jurisdiction over the earlier dismissal order of 9/2/2017, holding that since Okongo J made the order and is still in the Station, that Judge is the proper one to review or set it aside. The court accordingly directed that the reinstated application be placed before Okongo J for directions via a mention before the Deputy Registrar.

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Legal principles established

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  • The discretion to set aside a dismissal order is intended to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake, and not to assist a litigant who deliberately obstructs or delays justice.
  • The doctrine of res judicata does not apply to applications dismissed for non-attendance because such dismissals are not determinations on the merits.

Court orders

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  1. 1.Eunice Mukami Ndungu Njoroge is substituted as the applicant in her capacity as administrator of the estate of Daniel Kirumbi Njoroge
  2. 2.The notice of motion dated 13/2/2017 is reinstated for hearing and determination
  3. 3.The matter to be mentioned before the Deputy Registrar on 3/12/2020 to fix a mention date before Okongo J for directions on the disposal of the notice of motion dated 13/2/2017
  4. 4.The estate of Daniel Kirumbi Njoroge shall pay the respondent throwaway costs of Kshs 15,000 within 30 days, in default of which the reinstatement order shall stand vacated

Authorities

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Legislation

  • Civil Procedure RulesOrder 24 rule 7(2)
  • Limitation of Actions ActSection 7

Cases cited (3)

  • Mbogo & Another Vs Shah
    EALR 1908 at page 13
  • Belinda Murai & Others Vs Amoi Wainaina
    (1978)
  • Philip Chemwolo & Another Vs Augustine Kubede
    (1982-88) KAR 103
Jurisdiction invoked
Order 24 rule 7(2) of the Civil Procedure Rules

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, "Daniel Kirumbi Njoroge v Christopher Kangethe Kigwe [2020] KEELC 456 (KLR)", Case Analysis (2020). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/456/eng@2020-11-26

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