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ELCDismissedMakueni ELC Case as filed vide plaint dated 29/07/2016 (number not stated in judgment)· [2020] KEELC 2371 (KLR)

Paul Mboko Mutua & 2 others (Suing as the registered Trustees of Redeemed Gospel Church) v Lazaluos Mambo & 3 others [2020] KEELC 2371 (KLR)

Environment and Land Court
29 May 2020
CMC.G. Mbogo
2,299 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 refused to revive a land suit, ruling that litigants must follow their own cases even when lawyers represent them.

What this practically means

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Executive summary

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This is a ruling on a Notice of Motion dated 16th October, 2019 by the Applicants (Bishop Arthur Kitonga and the Redeemed Gospel Church) seeking reinstatement of their suit over Emali Township Block 1/126, which was dismissed by the court on 26th September 2019 after the plaintiffs failed to attend. The Applicants blamed their advocate's mistake and relied on authorities urging that mistakes of counsel should be excused in the interests of justice. The Respondents opposed, showing the plaintiffs had failed to attend court on numerous dates since 2017, and that at least four other suits over the same property were pending or had been filed in other courts, rendering the application an abuse of process. The court framed a single issue: whether the suit should be reinstated. Reviewing the record, the court found the plaintiffs had never appeared - not even the church trustees - and that the defendants had kept the matter alive. The court also found the plaintiff had filed multiple suits over the same subject matter, echoing earlier observations by Mutende J and Angote J, and rejected Bishop Kitonga's claim of ignorance as feigned. The court held the plaintiff's conduct was not an excusable mistake and reinstatement would abet abuse of court process. The application was dismissed with costs to the Respondents. A throw-away costs request of Kshs. 150,000/= was not addressed in the final orders.

Key legal issues

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01

Whether the court should exercise its discretion to reinstate a suit dismissed for non-attendance

Holding

The court declined to reinstate the suit, holding the plaintiff had lost interest and its conduct was an abuse of process, not an excusable mistake

Reasoning

The court reviewed the record showing the plaintiff never appeared on numerous mention and hearing dates from 2017 to 2019 while defendants ensured continuity. It found plaintiff trustees never attended court. It further found the plaintiff had instituted multiple suits over the same property, Emali Township Block 1/126, and feigned ignorance of them. Reinstatement would abet abuse of court process and reward indolence, so the discretion was not exercised in the plaintiff's favour.

p. 3

Legal principles established

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  • Plaintiffs have a duty to follow up their cases even where they are represented by Counsel

Court orders

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  1. 1.Dismissal of the Notice of Motion dated 16th October, 2019 with costs to the Respondents

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159
  • Civil Procedure ActSections 1A, 1B, 3A & 63(e)
  • Civil Procedure Rules, 2010Order 51 Rule 15
  • Civil Procedure Rules, 2010Order 11
  • Evidence ActSection 107

Cases cited (9)

  • Richard Ncharpi Leiyagu –vs- Independent Electoral & Boundaries Commission & 2 Others
    (2013) eKLR
  • Mbogo & Another –vs- Shah
    EALR 1968
  • Belinda Murai & Others –vs- Amoi Wainaina
    (1978) LLR 2782 (CALL)
  • Nicholas Kiptoo Arap Korir Sala –vs- IEBC & 6 Others
    (2013) eKLR
  • Rajesh Rughani –vs- Fifty Investment Ltd. & Anor
    (2005) eKLR
  • Eric Oluoch –vs- Kenneth O. Obae
    ELC No. 322 of 2009 pg 2-3
  • Makindu PMCC 239 of 2008
  • Machakos CMCC 380 of 2010
  • Machakos HCCC 216 of 2010
Jurisdiction invoked
Article 159 of the Constitution of Kenya, 2010; Sections 1A, 1B, 3A & 63(e) 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, "Paul Mboko Mutua & 2 others (Suing as the registered Trustees of Redeemed Gospel Church) v Lazaluos Mambo & 3 others [2020] KEELC 2371 (KLR)", Case Analysis (2020). Makueni ELC Case as filed vide plaint dated 29/07/2016 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2371/eng@2020-05-29

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