Elizabeth Mary Kendall v Thomas Mwinza Mangi [2020] KEELC 1506 (KLR)
The bottom line
#A Kenyan court refused to revive a land claim dismissed for non-attendance because the defendant never personally explained his absence.
What this practically means
#Executive summary
#Key legal issues
#Discretion to reinstate a suit dismissed for non-attendance
Order 12 Rule 7 confers discretion to reinstate, exercisable only where it is just in the circumstances
The court found that the counterclaim must have been dismissed under Order 12 Rule 1, since neither party attended the hearing on 7 November 2018. Order 12 Rule 7 permits setting aside such dismissal on such terms as may be just. The discretion is judicial and must be exercised where the applicant demonstrates sufficient cause; mere regret by counsel is insufficient.
Sufficiency of a supporting affidavit sworn only by counsel
An affidavit solely sworn by counsel is not good enough where the defendant's own whereabouts and availability are unexplained
The supporting affidavit was sworn by counsel on record, who claimed the defendant could not be traced. The defendant featured nowhere in the application: he did not swear an affidavit explaining where he had been or confirm he was now available to prosecute the case. The court doubted whether the defendant was available at all, and held the application failed to demonstrate sufficient cause.
Adequacy of service of the hearing notice
Service 50 days before the hearing was more than sufficient notice
Counsel's firm was served with the hearing notice on 17 September 2018 for a hearing on 7 November 2018, about 50 days' notice. The court rejected the submission that this was too short a time to contact the client, holding there was more than ample time for the defendant to be contacted. The absence of the defendant at the hearing was therefore unexplained.
Availability of an alternative remedy
No serious prejudice arises because the defendant may file a fresh suit under Order 12 Rule 6(1)
Since the dismissal was under Order 12 Rule 1 and not rule 3, Order 12 Rule 6(1) permits a fresh suit on the same cause of action, subject to limitation. The defendant could therefore pursue his claim by filing a fresh suit, so refusing reinstatement caused him no irreparable prejudice.
Legal principles established
#- Where a suit is dismissed under Order 12 Rule 1 for non-attendance, the court retains discretion under Order 12 Rule 7 to reinstate it if it is just to do so
- An application to reinstate a dismissed suit must be supported by the applicant litigant's own explanation; an affidavit solely by counsel does not suffice where the litigant's whereabouts and availability are unexplained
- A plaintiff whose suit is dismissed under Order 12 Rule 1 may bring a fresh suit, subject to limitation, under Order 12 Rule 6(1)
Court orders
#- 1.The application dated 7 March 2019 seeking reinstatement of the counterclaim is dismissed with costs
- 2.The order of dismissal of the counterclaim made on 7 November 2018 stands
- Jurisdiction invoked
- Inherent discretion under Order 12 Rule 7 of the Civil Procedure Rules to reinstate a suit dismissed under Order 12
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Elizabeth Mary Kendall v Thomas Mwinza Mangi [2020] KEELC 1506 (KLR)", Case Analysis (2020). Not stated in the judgment (Mombasa ELC suit filed 2 December 2009). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1506/eng@2020-07-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.