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ELCAllowedApplication dated 18th February 2019 (miscellaneous application, file transferred from ELC Nairobi to ELC Kajiado; original application dated 22nd October 2015)· [2020] KEELC 2421 (KLR)

Ezekiel Nyamweya Kebati v Sweetland Limited & another [2020] KEELC 2421 (KLR)

Environment and Land Court
26 May 2020
1,753 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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

What this practically means

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Executive summary

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This was a Notice of Motion dated 18th February 2019 brought under sections 1A, 1B and 3A of the Civil Procedure Act, seeking to set aside the court's orders of 11th June 2018 dismissing the Applicant's application dated 22nd October 2015 for want of prosecution, and to reinstate that application for hearing on merit. The Applicant, Noah O. Nyakundi Advocate, explained that the original application (seeking transfer of Nairobi CMCC No. 7047 of 2014 to the ELC for want of pecuniary jurisdiction in the Chief Magistrate's Court) was transferred by Justice Obaga on 9th February 2017 to ELC Kajiado, where the file was allocated a new number and went missing, leading to the Notice to Show Cause being misfiled and the application being dismissed in the Applicant's absence on 11th June 2018. The 2nd Respondent, Hillary K. Kiboinet, opposed, contending the Applicant was indolent, had lost interest, and that the Respondents had moved on, with no prejudice arising from reinstatement. The court framed a single issue: whether to set aside the orders of 11th June 2018 and reinstate the application. Relying on Order 12 rule 7, Article 50(1) of the Constitution, and the principles in Utalii Transport, Ivita v Kyumbi, Patriotic Guards and Belinda Muras, the court found the delay explained, no prejudice demonstrated by the 2nd Respondent, and exercised its discretion in the Applicant's favour. The application was allowed; the application dated 22nd October 2015 was reinstated to be heard on merit within 60 days. Costs of the application were awarded to the 2nd Respondent.

Key legal issues

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01

Whether the dismissal of the Applicant's application dated 22nd October 2015 for want of prosecution should be set aside and the application reinstated

Holding

The dismissal was set aside and the application reinstated, the Applicant having explained the delay and the 2nd Respondent having failed to demonstrate prejudice.

Reasoning

Applying the Utalii Transport principles, the court found the Applicant explained the delay (file transfer, change of case number and misfiling of the Notice to Show Cause) and that counsel's admitted mistake should not be visited on the client. No prejudice to the 2nd Respondent was demonstrated, and Article 50(1) guarantees the right to be heard. The underlying application sought transfer of Nairobi CMCC No. 7047 of 2014 to the ELC.

p. 3

Legal principles established

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  • Where a suit or application has been dismissed for want of prosecution, the court may on application set aside or vary the dismissal upon such terms as are just.
  • A mistake by an advocate should not necessarily be visited upon the client where the interests of justice dictate rectification.

Court orders

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  1. 1.The orders issued on 11th June 2018 dismissing the application dated 22nd October 2015 for want of prosecution are set aside
  2. 2.The Applicant's Application dated 22nd October 2015 is reinstated and to be heard on merit within 60 days from the date of the order
  3. 3.Costs of this application are awarded to the 2nd Respondent

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B and 3A
  • Civil Procedure Rules (cited as 'Order 12 rule 7 of the Civil Procedure Act')Order 12 rule 7
  • Constitution of KenyaArticle 50(1)

Cases cited (9)

  • Patriotic Guards Ltd Vs James Kipchirchir Sambu (2018) eKLR
  • Edney Adaka Ismail V Equity Bank Limited (2014) eKLR
  • Bank of Africa Kenya Limited V Put Sarajevo General Engineering Co. Ltd & 2 others (2018) eKLR
  • JG Builders V Plan International (2015) eKLR
  • Utalii Transport Company Limited & 3 Others V NIC Bank & Another (2014) eKLR
  • Barnabas Maritim V Manywele Korgoren & Another (2016) eKLR
  • Mbogo v Shah
  • Ivita Vs Kyumbu [1984] KLR 441
  • Belinda Muras & 6 Others V Amos Wainaina (1978) KLR
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act; Order 12 rule 7 of the Civil Procedure Rules; Article 50(1) of the Constitution

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, "Ezekiel Nyamweya Kebati v Sweetland Limited & another [2020] KEELC 2421 (KLR)", Case Analysis (2020). Application dated 18th February 2019 (miscellaneous application, file transferred from ELC Nairobi to ELC Kajiado; original application dated 22nd October 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2421/eng@2020-05-26

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