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ELCAllowedNot stated in judgment (Notice of Motion dated 22nd November 2019)· [2020] KEELC 2400 (KLR)

Kadzo Kahindi & another v Furaha Katana Dyeka & 6 others [2020] KEELC 2400 (KLR)

Environment and Land Court
27 May 2020
JOJ.O. Olola
950 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 reinstated a dismissed land case, ruling that a lawyer's diary mix-up was an honest mistake, not negligence.

What this practically means

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Executive summary

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This was a ruling on a Notice of Motion dated 22nd November 2019 by two Plaintiffs seeking reinstatement of their application dated 3rd October 2019, which had been dismissed for want of prosecution on 22nd November 2019, together with reinstatement of the interim orders of injunction issued on 3rd October 2019. The application was supported by an affidavit of the Plaintiffs' Advocate, Conrad Atiang, who explained that the court had fixed the application for hearing on 22nd November 2019 but he misdiarised the date as 27th November 2019. The seven Defendants, through a Replying Affidavit sworn by the 2nd Defendant Charo Katana Dyeka, opposed the application, contending that the Plaintiffs had squandered their opportunity to be heard and that Counsel had been alerted by a colleague on the morning of the hearing but failed to attend or instruct another Advocate to hold brief. The court, applying Order 12 Rule 7 of the Civil Procedure Rules and the principles in Patel v EA Cargo Handling Services Ltd and Mbogo v Shah, found that Counsel had objectively corroborated the misdiarisation by annexing his diary showing the wrong entry and a hearing notice served on the Defendants listing the matter for 27th November 2019. The court was satisfied the failure to attend was an inadvertent and excusable mistake and allowed the motion in terms of Prayer No. 3, with thrown away costs of Kshs 10,000/- payable by the Plaintiffs to the Defendants within 30 days. Delivered at Malindi on 27th May 2020 by J.O. Olola, Judge.

Key legal issues

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01

Whether misdiarisation of a hearing date by Counsel constitutes an excusable mistake warranting reinstatement of a dismissed application

Holding

Yes - where Counsel annexed his diary showing the wrongful entry and a hearing notice reflecting the mistaken date, the failure to attend was an inadvertent and excusable mistake.

Reasoning

The court considered the principles in Patel v EA Cargo Handling Services and Mbogo v Shah on setting aside dismissals. Counsel demonstrated the misdiarisation objectively by annexing his diary showing the entry for 27th November 2019 and a hearing notice dated 25th October 2019 served on the Defendants listing 27th November 2019. This corroborated the claim of confusion, and the application was brought without delay, satisfying the court that justice required reinstatement.

p. 2

Legal principles established

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  • The court's discretion to set aside a dismissal is limited only by the requirement that it be exercised on such terms as may be just, its main concern being to do justice to the parties.
  • The discretion to set aside is to be exercised to avoid injustice from accident, inadvertence or excusable mistake, not to assist deliberate obstruction or delay.

Court orders

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  1. 1.The Notice of Motion dated 22nd November 2019 allowed in terms of Prayer No. 3 thereof (reinstating the application dated 3rd October 2019 and setting it down for hearing)
  2. 2.Plaintiffs to pay the Defendants thrown away costs assessed at Kshs 10,000/- within 30 days

Authorities

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Legislation

  • Civil Procedure RulesOrder 12 Rule 7

Cases cited (2)

  • Patel –vs- EA Cargo Handling Services Ltd
    (1974) EA 75
  • Mbogo –vs- Shah
    (1968) EA 93
Jurisdiction invoked
Order 12 Rule 7 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, "Kadzo Kahindi & another v Furaha Katana Dyeka & 6 others [2020] KEELC 2400 (KLR)", Case Analysis (2020). Not stated in judgment (Notice of Motion dated 22nd November 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2400/eng@2020-05-27

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