Gathaite Farmers Co-operative Society Limited v Nicholas Kigo Ndungu & another [2020] KEELC 2598 (KLR)
The bottom line
#A Kenyan land court restored a dismissed case, ruling that honest mistakes by lawyers deserve a second chance, even after months of delay.
What this practically means
#Executive summary
#Key legal issues
#Discretion to set aside dismissal for non-attendance under Order 12 Rule 7
The discretion was exercised in favour of the Applicant because the matter was part-heard and justice required the parties have their day in court, notwithstanding the delay
The court traced the record showing the hearing date of 11/6/19 was taken in open court on 6/5/19 by Mr Waithaka holding Mr Bwononga's brief. Although Counsel's ignorance of the date was derogative of his duty and the 5-month delay may have been inordinate, the court found no deliberate obstruction. Because the matter was part heard, the discretion under Order 12 Rule 7 was exercised to avoid injustice and allow a full hearing.
Whether the delay of about five months was inordinate
Five months may be inordinate for a matter with a fixed hearing date, but this alone did not defeat the application
The court noted the suit was dismissed on 11/6/19 and the Applicant learnt of it only on 10/12/19. While a fixed hearing date demanded vigilance from the Applicant, the absence of deliberate obstruction and the part-heard status of the matter tipped the balance toward restoration so that the substantive land dispute could proceed to full hearing.
Duty of Counsel following a hearing where he did not personally attend
Counsel who holds instructions must actively follow up on what transpired in court through the Advocate who held his brief
The court found Mr Bwononga was not a passive bystander since the hearing date had been taken on his instructions by Mr Waithaka. Failure to confirm the outcome, and the absence of an affidavit from Mr Waithaka confirming he failed to convey the court's orders, weighed against the Applicant's explanation but did not make the mistake inexcusable.
Legal principles established
#- The power to set aside an order dismissing a suit for non-attendance is a discretionary power to be exercised to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake, not to assist deliberate obstruction or delay
- There is no clear-cut test for what constitutes inordinate delay; courts assess the circumstances of each case
- Counsel is not a passive bystander and retains a cardinal duty to inquire from the Advocate who held his brief what transpired in Court
Court orders
#- 1.Set aside the dismissal orders issued on the 11/6/19
- 2.Applicant ordered to take steps to set the matter for expedient hearing as soon as Registry operations normalize in view of the COVID-19 pandemic
- 3.Applicant to meet the costs of the application
- Jurisdiction invoked
- Order 12 Rule 7 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gathaite Farmers Co-operative Society Limited v Nicholas Kigo Ndungu & another [2020] KEELC 2598 (KLR)", Case Analysis (2020). Not stated in judgment (Notice of Motion dated 19/12/2019, filed 23/12/2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2598/eng@2020-05-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.