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ELCAllowedNot stated in the judgment text· [2020] KEELC 3108 (KLR)

James Kinyua Migwi v Anthony Wachira Wangari & another [2020] KEELC 3108 (KLR)

Environment and Land Court
13 March 2020
748 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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This was a Notice of Motion dated 20th December 2018 brought under Order 45 Rules 1 & 2 of the Civil Procedure Rules and sections 3A and 1A of the Civil Procedure Act, seeking review and setting aside of orders made on 1st November 2018 dismissing the applicant's application dated 17th August 2018 (which sought stay of eviction from land parcel No. INOI/KARIKO/2594), together with interim stay of any eviction orders. The applicant deponed that he attended court on 1st November 2018 but his counsel was engaged before the High Court at Nyeri, and that the application was dismissed despite his presence and request for adjournment. The respondent opposed, contending that the applicant had always delayed the hearing, that the order of 1st November 2018 was a negative order with nothing to stay, and that no positive orders capable of execution had been made. The court held that counsel ought to have engaged counsel to hold his brief and seek adjournment with an explanation, noting the applicant did not attach a supplementary affidavit or cause list confirming the Nyeri engagements. Nonetheless, considering that the applicant was present in court when the dismissal order was made, the court found him interested and desirous of prosecuting the case and allowed the Notice of Motion, with costs to the 2nd respondent. The judgment was read and delivered at Kerugoya on 13th March 2020.

Key legal issues

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01

Review and setting aside of dismissal for want of prosecution

Holding

The court found the applicant interested and desirous of prosecuting the case and allowed the review notwithstanding counsel's absence.

Reasoning

The applicant was present in court on 1st November 2018 when his application was dismissed in the absence of his counsel. Although he did not attach evidence confirming his counsel's alleged engagements before the Nyeri High Court, and the hearing date had been fixed by consent, the court considered his presence as evidence of interest and willingness to prosecute, and exercised its discretion in his favour under sections 3A and 1A of the Civil Procedure Act.

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02

Duty of advocates to further the overriding objective

Holding

Advocates, as officers of the court, are enjoined by the Civil Procedure Act to assist the court to further the just, expeditious, proportionate and affordable resolution of civil disputes.

Reasoning

The court invoked the overriding objective provisions of the Civil Procedure Act and Civil Procedure Rules, reminding counsel that a fixed hearing date taken by consent obliges counsel either to attend, or to arrange for counsel to hold their brief and seek adjournment with a proper explanation.

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Legal principles established

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  • It is incumbent upon counsel who cannot attend court on a fixed date to engage counsel to hold their brief and seek adjournment with an explanation

Court orders

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  1. 1.The Notice of Motion dated 20th December 2018 is allowed
  2. 2.Costs of the application to the 2nd respondent

Authorities

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Legislation

  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 1A
  • Civil Procedure RulesOrder 45 Rules 1 & 2
On appeal from
Lower Court (decree under appeal referenced)
Jurisdiction invoked
Order 45 Rules 1 & 2, Section 3A and Section 1A of the Civil Procedure Act and 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, "James Kinyua Migwi v Anthony Wachira Wangari & another [2020] KEELC 3108 (KLR)", Case Analysis (2020). Not stated in the judgment text. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3108/eng@2020-03-13

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