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ELCDismissedNot stated in judgment· [2020] KEELC 1285 (KLR)

Joseph Kaberia Kumari v Tony Mwenda Muthaura (Environment and Land Appeal 99 of 2019) [2020] KEELC 1285 (KLR)

Environment and Land Court
30 September 2020
LMLUCY N. MBUGUA
465 words in judgment
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The bottom line

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A Kenyan court refused to reinstate a dismissed case, warning that litigants who ignore court directions after claiming urgency will pay with costs and their case.

What this practically means

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Executive summary

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By an application dated 30.10.2019, the applicant sought reinstatement of his application dated 7.8.2019, which had been dismissed on 28.10.2019 for non-appearance. The application was supported by the affidavit of Winnie Matiri, advocate for the applicant, who explained that on 28.10.2019 she had many other matters, including a succession cause in the High Court. The court canvassed the application by written submissions following directions of 27.1.2020. Reviewing the history, the court noted that the application of 7.8.2019 had been filed under a certificate of urgency and the file transmitted to Embu ELC for hearing in the first instance; the applicant obtained orders, including one of inhibition, and a hearing date of 23.9.2019. Service was not effected, prompting the court to give a fresh date of 28.10.2019, on which date there was no appearance for the applicant, leading to dismissal. The court held that a litigant who files an application under a certificate of urgency must prosecute it diligently in line with the court's directions, and found no good reason for non-compliance with the directions of 14.8.2019 and 29.9.2019. It further observed that the applicant was attempting to re-argue the issues raised in the dismissed application. The reinstatement application was dismissed with costs, the applicant was directed to file and serve the record of appeal within 30 days, failing which the appeal would stand dismissed, and a mention was set for 4.11.2020. The ruling was delivered electronically pursuant to COVID-19 practice directions.

Key legal issues

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Whether the dismissed application dated 7.8.2019 should be reinstated

Holding

The application for reinstatement was not merited; the dismissal of 28.10.2019 stands

Reasoning

The application had been filed under a certificate of urgency and some orders (notably inhibition) were obtained, with a hearing date of 23.9.2019 given and directions to serve. Service was not effected, a new date of 28.10.2019 was given, and on that date there was no appearance for the applicant, leading to dismissal. The court found no good reason for non-compliance with the orders of 14.8.2019 and 29.9.2019 and noted the applicant was attempting to re-argue the dismissed application.

p. 2

Legal principles established

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  • A party who files an application under a certificate of urgency must prosecute it diligently in accordance with the court's directions
  • A party cannot seek reinstatement while attempting to re-argue the issues raised in the dismissed application

Court orders

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  1. 1.Application dated 30.10.2019 dismissed with costs
  2. 2.Applicant directed to file and serve the record of appeal within 30 days from delivery of the ruling, failing which the appeal shall stand as dismissed
  3. 3.Mention before the DR on 4.11.2020
On appeal from
null
null
Jurisdiction invoked
Environment and Land Court jurisdiction over the appeal; application under certificate of urgency (no specific provision cited)

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, "Joseph Kaberia Kumari v Tony Mwenda Muthaura (Environment and Land Appeal 99 of 2019) [2020] KEELC 1285 (KLR)", Case Analysis (2020). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1285/eng@2020-09-30

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