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ELCDismissedNotice of Motion Application dated 30th May 2019 (suit number not stated in judgment)· [2020] KEELC 2045 (KLR)

James Ndegwa Ng’ang’a v Peter Kamau Kariuki & another [2020] KEELC 2045 (KLR)

Environment and Land Court
15 June 2020
1,616 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan landowner lost his land suit permanently after missing court dates, because courts will not excuse litigants who fail to follow their own cases.

What this practically means

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Executive summary

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The Plaintiff/Applicant moved the Court by Notice of Motion dated 30th May 2019 seeking to set aside the orders of 14th May 2019 dismissing his suit and to reinstate the suit. He argued that his advocate inadvertently misdiarized the mention date fixed for 14th May 2019 to confirm compliance with pre-trial directions, that the mistake of counsel should not be visited upon the client, and that reinstatement was in the interests of justice given the emotive subject of land. The Defendants opposed, contending that the Plaintiff had been indulged on 19th March 2019 with a further 30 days to comply with Order 11 directions, still failed to comply, and that indolence should not be rewarded. The court, guided by Order 12 Rule 7 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act, applied the Patel v E.A Cargo Handling and Shah v Mbogo principles on the discretionary setting aside of ex parte dismissals. It found the explanation for non-attendance unsatisfactory, noted that the documents were filed on 14th May 2019, well beyond the 30 days granted, accepted that the Defendants would suffer prejudice if the suit were reinstated, and agreed that there had never been a change of advocates as claimed. It further held, citing Eric Malu v Iilulwe Development Company, that a litigant bears equal responsibility for following up his case. The application was dismissed entirely with costs to the Defendants/Respondents. The ruling was delivered online under COVID-19 directives.

Key legal issues

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01

Whether the Applicant was entitled to have the orders dismissing his suit set aside and the suit reinstated

Holding

The application was not merited; the discretion to set aside was not exercised in the Applicant's favour because he gave no satisfactory reason for non-attendance, filed documents past the granted period, misled the court on a change of advocates, and a litigant cannot simply blame counsel.

Reasoning

The court applied Order 12 Rule 7 and Section 3A of the Civil Procedure Act, adopting the Patel and Shah Mbogo principles on the wide but justice-oriented discretion to set aside ex parte orders. It found the misdiarization explanation unsatisfactory since the documents were filed on 14th May 2019, well past the 30 days granted on 19th March 2019. It also accepted the Defendants' contention that the Applicant had never changed advocates, making the claim of taking over the suit misleading, and held the litigant equally responsible for following up the case.

p. 2

Legal principles established

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  • The discretion to set aside ex parte dismissal orders is wide but must be exercised to do justice between the parties
  • The discretion to set aside is not available to a party who deliberately obstructs or delays the cause of justice
  • A litigant bears equal responsibility with counsel to follow up on their case

Court orders

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  1. 1.The Notice of Motion Application dated 30th May 2019 is dismissed entirely
  2. 2.Costs to the Defendant/Respondents

Authorities

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Legislation

  • Civil Procedure RulesOrder 12 Rule 7
  • Civil Procedure RulesOrder 11
  • Civil Procedure RulesOrder 21 rule 1
  • Civil Procedure ActSection 3A

Cases cited (3)

  • Patel….Vs….E.A Cargo Handling Services Ltd
    (1974) EA 75
  • Shah….Vs…Mbogo
    (1967) EA 166
  • Eric Malu t/a Mailu & Mailu…Vs… Iilulwe Development Company Ltd & others
    (2019) eklr
Jurisdiction invoked
Order 12 Rule 7 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act

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, "James Ndegwa Ng’ang’a v Peter Kamau Kariuki & another [2020] KEELC 2045 (KLR)", Case Analysis (2020). Notice of Motion Application dated 30th May 2019 (suit number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2045/eng@2020-06-15

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