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ELCDismissedNot stated in judgment (Notice of Motion dated 15th January 2019)· [2020] KEELC 3292 (KLR)

Abdalla Mchangamwe Omar & another v Jumwa Kalam & 7 others [2020] KEELC 3292 (KLR)

Environment and Land Court (not expressly named in the excerpt; delivered at Mombasa)
21 January 2020
CYC.K. Yano
1,424 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to reinstate a land suit because the owners couldn't explain missing their hearing or waiting eleven months to act.

What this practically means

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Executive summary

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The Plaintiffs/Applicants moved the court by Notice of Motion dated 15th January 2019, under Sections 3A and 63(e) of the Civil Procedure Act and Order 10 Rule 11 and Order 51 Rule 1 of the Civil Procedure Rules, seeking to set aside an order of 1st March 2018 dismissing their suit for non-attendance by the plaintiffs and their advocate. They blamed their then advocates, Angelo Owino Advocates, for failing to inform them of the hearing date, and relied on an affidavit by Mr. Angelo Morris Owino explaining that he was before another court and his 'hold brief' colleague delayed. The Respondents opposed through grounds of opposition, terming the application misconceived, frivolous and incompetent. The court framed a single issue: whether the dismissal order should be set aside and the suit reinstated. Applying the test that delay must be explained to the court's satisfaction and cause no substantial prejudice, the court found the explanation wanting: Mr. Owino gave no particulars of the other case or court, did not name the colleague, did not corroborate the claim that clients were never informed, and no reason was given for the eleven-month delay in bringing the application. Independently, the incoming firm, Oduor Siminyu & Co. Advocates, had filed a Notice of Change of Advocate and then the application without a prayer for leave to come on record as mandated by Order 9 Rules 9 and 10, rendering the application fatally defective; the court held that requirement is mandatory, not a mere technicality. The application was dismissed with costs to the Respondents on 21st January 2020 (C.K. Yano, J).

Key legal issues

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01

Whether the dismissal order of 1st March 2018 should be set aside

Holding

No - the Applicants and their advocate gave no satisfactory explanation for non-attendance, no explanation for the approximately 11-month delay in filing the application, and the advocate's affidavit lacked particulars

Reasoning

The court applied the test that delay must not be contumelious or inexcusable and must be explained to the court's satisfaction without causing substantial prejudice. The advocate's affidavit failed to identify the other case or court, or the colleague asked to hold his brief; it did not corroborate the claim that the clients were never informed of the hearing date; and no reason was given for the 11-month delay.

p. 2
02

Whether the Application was competent given the change of advocates

Holding

No - fatally defective for omitting a prayer for leave to come on record as required by Order 9 Rules 9 and 10

Reasoning

The suit was dismissed after judgment-stage proceedings while Angelo Owino & Co. Advocates were on record; Oduor Siminyu & Co. Advocates filed a Notice of Change of Advocate and then the setting-aside application without first obtaining leave to come on record. Order 9 Rule 9 permits combination of prayers, but the change of advocate must be determined first. The requirement is mandatory.

p. 2

Legal principles established

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  • The procedure for a change of advocate after judgment under Order 9 Rule 9 is mandatory, not a mere technicality; an incoming advocate must first obtain leave to come on record, and prayers may be combined only with the change-of-advocate question determined first
  • The test for reinstating a suit dismissed for non-attendance is whether the delay is explained to the court's satisfaction and causes no substantial prejudice

Court orders

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  1. 1.The Application dated 15th January 2019, being incompetent and lacking merit, is dismissed
  2. 2.Costs of the Application awarded to the Respondents

Authorities

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Legislation

  • Civil Procedure ActSections 3A, 63(e)
  • Civil Procedure RulesOrder 10 Rule 11
  • Civil Procedure RulesOrder 51 Rule 1
  • Civil Procedure RulesOrder 9 Rule 9
  • Civil Procedure RulesOrder 9 Rule 10
Jurisdiction invoked
Sections 3A and 63(e) of the Civil Procedure Act; Order 10 Rule 11 and Order 51 Rule 1 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, "Abdalla Mchangamwe Omar & another v Jumwa Kalam & 7 others [2020] KEELC 3292 (KLR)", Case Analysis (2020). Not stated in judgment (Notice of Motion dated 15th January 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3292/eng@2020-01-21

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