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ELCPartially AllowedNot stated in the judgment (suit at Malindi; Notice of Motion dated 19th February 2019)· [2020] KEELC 1367 (KLR)

Japheth Kalama Washe & another v Chrispus Deche Kaduka & 13 others [2020] KEELC 1367 (KLR)

Environment and Land Court
18 September 2020
JOJ.O. Olola
1,185 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court reinstated a dismissed land case, ruling that a lawyer's mistake shouldn't cost a client their day in court.

What this practically means

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Executive summary

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The Plaintiffs, Japhet Kalama Washe and Patrick Mono Mbura, moved the Court by Notice of Motion dated 19th February 2019 seeking reinstatement of their suit, dismissed with costs on 17th October 2018 for want of prosecution. They blamed their non-attendance on misrepresentation by the Defendants' Counsel, who had emailed on 16th October 2018 indicating he would be held up at the High Court in Mombasa and would seek an adjournment, yet appeared and asked for dismissal. The Defendants' Counsel, in a Replying Affidavit sworn by McMillan E Jengo, explained that his email request went unanswered, so he treated the adjournment as refused, rearranged his Mombasa commitments and attended court as scheduled; he owed no duty to update the Plaintiffs. The Court framed a single issue: whether there was basis to exercise discretion to set aside the dismissal and reinstate the suit. Relying on Section 3A of the Civil Procedure Act, Order 51 Rule 15, and the Mbogo v Shah, Belinda Murai and Philip Chemwolo authorities, the Court held that counsel's mistakes should not deny a litigant a hearing on the merits absent fraud or intent to overreach, and found no dilatory conduct by the Plaintiffs, who had themselves fixed the hearing date. The Court allowed the application and reinstated the suit, but on condition that the Plaintiffs pay throw-away costs of Kshs 20,000/- within 30 days, failing which reinstatement stands vacated.

Key legal issues

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01

Discretion to set aside dismissal for want of prosecution

Holding

The Court's inherent and discretionary power under Section 3A and Order 51 Rule 15 should be exercised judiciously in favour of substantive justice where the plaintiffs were not dilatory and the mistake was counsel's

Reasoning

The Court relied on Mbogo v Shah, Belinda Murai and Philip Chemwolo to hold that mistakes by advocates should not permanently shut out a litigant where there is no fraud or intention to overreach. It found the plaintiffs had fixed the suit themselves and showed no dilatory conduct, and any inconvenience could be compensated by costs.

p. 2
02

Alleged misrepresentation by Defendants' Counsel

Holding

The accusation that Defendants' Counsel lied was without basis; he was under no obligation to notify the Plaintiffs of his change of plans after they ignored his email

Reasoning

The Defendants' Counsel had emailed requesting an adjournment; the Plaintiffs did not respond. Counsel treated silence as rejection, arranged his Mombasa matters and travelled to Malindi. He owed no duty to alert the Plaintiffs, and in any event Plaintiffs' Counsel's presence remained necessary on the hearing date.

p. 2

Legal principles established

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  • A party should not be denied a hearing on the merits for a counsel's mistake unless there is fraud or intention to overreach; default can be cured by payment of costs

Court orders

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  1. 1.The application is allowed and the Plaintiffs' suit is reinstated for hearing and disposal
  2. 2.The Plaintiffs shall pay the Defendants throw away costs assessed at Kshs 20,000/- within 30 days, in default of which the order reinstating the suit shall stand vacated

Authorities

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Legislation

  • Civil Procedure ActSection 3A
  • Civil Procedure RulesOrder 51 Rule 15

Cases cited (3)

  • Mbogo & Another –vs- Shah
    (1968) EALR
  • Belinda Murai & Others –vs- Amos Wainaina
    (1978) KLR
  • Philip Chemwolo & Another –vs- Augustine Kubede
    (1982-88) KAR 103
Jurisdiction invoked
Section 3A of the Civil Procedure Act and Order 51 Rule 15 of the Civil Procedure Rules

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, "Japheth Kalama Washe & another v Chrispus Deche Kaduka & 13 others [2020] KEELC 1367 (KLR)", Case Analysis (2020). Not stated in the judgment (suit at Malindi; Notice of Motion dated 19th February 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1367/eng@2020-09-18

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