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ELCPartially AllowedNotice of Motion dated 27th October 2018 (in Judicial Review application)· [2020] KEELC 2657 (KLR)
Republic v Land Adjudication Officer Mwanda Mbalamweni Adjudication Section & 2 others; Katana Ngala Sirya & others (Interested Parties) [2020] KEELC 2657 (KLR)
High Court of Kenya (Environment and Land jurisdiction as exercised at Malindi)
13 May 2020
840 words in judgment
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·~3 min to read original · ~4 min briefThe bottom line
#A Kenyan court reinstated a dismissed land case because the lawyer's absence was excusable, but ordered Kshs 30,000 costs paid within 45 days.
What this practically means
#Executive summary
#By a Notice of Motion dated 27th October 2018, the Ex-Parte Applicant sought review, variation and/or discharge of orders made on 27th September 2018 dismissing the Notice of Motion dated 14th November 2017, reinstatement of that application, and a stay of the land adjudication process in respect of the Mwanda/Mbalamweni Land Adjudication Section as regards Parcel No. 2916. The application was supported by affidavits of Counsel Edward M. Gichana and his clerk, explaining that Counsel was unwell on the hearing date and his clerk, delayed by rains, arrived to find the application dismissed. The 3rd Respondent, Robert Safari Fondo, opposed the application as an afterthought, arguing the Applicant had shown no diligence in prosecuting the matter. Relying on Patel v EA Cargo Handling Services Ltd and Shah v Mbogo, J.O. Olola, J held that the power to set aside orders is discretionary and exists to avoid injustice from accident, inadvertence or excusable mistake, not to reward deliberate obstruction. The court accepted that Counsel's absence was not deliberate but observed that Counsel should have informed opposing counsel or arranged for another to hold his brief. The court allowed the reinstatement subject to thrown away costs of Kshs 30,000/- payable within 45 days, failing which the application would stand dismissed. The application was dated, signed and delivered at Malindi on 13th May 2020.
Key legal issues
#01
Whether Counsel's illness and the clerk's late arrival constitute sufficient cause to reinstate the dismissed application
Holding
Yes - the absence was not deliberate nor designed to obstruct justice; reinstatement allowed subject to thrown away costs
Reasoning
Counsel swore an affidavit explaining he was unwell on the hearing date and had dispatched his clerk, who arrived late due to rains. A Medical Treatment Card corroborated the illness. The court accepted the absence was not deliberate and that justice required reinstatement, but conditioned it on thrown away costs given the failure to inform opposing counsel.
p. 2
Legal principles established
#- The power to set aside an order is discretionary and the main concern of the Court is to do justice to the parties
- The discretion to set aside exists to avoid injustice from accident, inadvertence or excusable mistake, not to reward deliberate obstruction
Court orders
#- 1.The application dated 27th October 2018 is allowed subject to payment of the 3rd Respondent's thrown away costs assessed at Kshs 30,000/-
- 2.The thrown away costs to be paid within 45 days failing which the application shall stand dismissed
- 3.Orders accordingly
- Jurisdiction invoked
- Inherent and discretionary power of the Court to review, vary or discharge its own orders (relied on Patel v EA Cargo Handling Services Ltd and Shah v Mbogo)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Land Adjudication Officer Mwanda Mbalamweni Adjudication Section & 2 others; Katana Ngala Sirya & others (Interested Parties) [2020] KEELC 2657 (KLR)", Case Analysis (2020). Notice of Motion dated 27th October 2018 (in Judicial Review application). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2657/eng@2020-05-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.