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ELCAllowedNot stated in judgment· [2020] KEELC 3354 (KLR)

Abdinoor Shurie v Halima Bundid [2020] KEELC 3354 (KLR)

Environment and Land Court
27 February 2020
ECE. C Cherono
2,393 words in judgment
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The bottom line

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Kenya's Environment and Land Court reinstated a dismissed land suit, ruling the right to be heard outweighed the plaintiff's procedural mistakes, but ordered costs against him.

What this practically means

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Executive summary

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The Plaintiff moved the court by Notice of Motion dated 29th November 2019 seeking reinstatement of his suit, which stood dismissed after he failed to comply with an Order 11 compliance direction issued on 29th July 2019 and confirmed on 27th November 2019. The Plaintiff argued that his former counsel had in fact filed Order 11 documents on 27th November 2019, that his counsel's mistake should not be visited on him, and that reinstatement was warranted under Articles 50 and 159(2)(d) of the Constitution. The Defendant opposed through a Replying Affidavit and a Preliminary Objection on two grounds: that the application was defective for breach of Order 9 rules 9 and 10 because the incoming advocates filed only a Notice of Change of Advocates without leave, and that the application was an abuse of process. The court framed two issues: the merit of the Preliminary Objection and whether the suit should be reinstated. Applying Njue Ngai v Ephantus Njiru and Peter Ngome v Plantex, the court held that a dismissal of a suit is a judgment and a final decree, so leave was required under Order 9 rule 9 and the procedure was mandatory, not a curable technicality. Nevertheless, noting the plaintiff's late-filed Order 11 documents, Article 50's right to be heard, and the seriousness of shutting a party out of a hearing (citing Shah v Mbogo and Ivita v Kyumbu), the court allowed the reinstatement in the interest of justice, with costs of Kshs.10,000/= awarded to the Defendant, payable before the next court action. Judgment read and delivered on 27th February 2020 by E. C. Cherono, ELC Judge.

Key legal issues

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01

Whether a dismissal of a suit for non-compliance with Order 11 amounts to a judgment triggering Order 9 rule 9

Holding

Yes - a dismissal is a judgment and a final decree, so the incoming advocate needed leave of the court to come on record; a mere Notice of Change of Advocates was insufficient.

Reasoning

The court relied on Njue Ngai v Ephantus Njiru and the earlier Peter Ngome v Plantex decision, which held that a judgment is a judicial determination on the main question in a proceeding and includes a dismissal. Since the suit had been dismissed, Order 9 rule 9 applied and the plaintiff's new advocates should have sought leave.

p. 3
02

Whether the mandatory defect under Order 9 rule 9 should defeat reinstatement

Holding

Although the procedure was mandatory and the objection valid in law, the court exercised discretion to reinstate in the interest of justice given the plaintiff's right to be heard under Article 50.

Reasoning

The court acknowledged the plaintiff's lack of diligence and the defendant's efforts to move the matter, but noted the plaintiff had belatedly filed his Order 11 documents and that shutting a party out of a hearing is a serious matter unless done deliberately to obstruct justice, citing Shah v Mbogo and Ivita v Kyumbu.

p. 3

Legal principles established

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  • A dismissal of a suit is a judgment; consequently a new advocate coming on record after dismissal requires leave under Order 9 rule 9 of the Civil Procedure Rules
  • Order 9 rule 9 procedure for change of advocate after judgment is mandatory, not a mere procedural technicality
  • Where a suit can still be prosecuted and justice done despite delay, a party should be given the chance to be heard

Court orders

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  1. 1.The Notice of Motion dated 29th November 2019 seeking reinstatement of the suit is allowed in the interest of justice
  2. 2.Costs to the Defendant/Respondent assessed at Kshs.10,000/= to be paid before the next court action

Authorities

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Legislation

  • Constitution of KenyaArticle 50
  • Constitution of KenyaArticle 159(2)(d)
  • Civil Procedure Rules, 2010Order 9 Rule 5
  • Civil Procedure Rules, 2010Order 9 Rule 9
  • Civil Procedure Rules, 2010Order 9 Rule 10
  • Civil Procedure Rules, 2010Order 11
  • Civil Procedure ActNot specified (definition of 'judgment')

Cases cited (9)

  • Wachira Karani vs Bildad Wachira
    (2016) eKLR
  • Shah v Mboga
    (1967) EA 116
  • Stephen Ndichu v Mont's Wine and Spirits Ltd
    (2006) eKLR
  • John Nahashon Mwangi v Kenya Finance Bank Limited (in Liquidation)
    (2015) eKLR
  • Njue Ngai Vs Ephantus Njiru & Anor
    CA 29 of 2015, Nyeri
  • Peter Ngome vs Plantex Company Limited
    [1983] eKLR
  • Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors ltd
    (1969) EA 696
  • Shah & Another v. Mbogo
    [1967] EA 117
  • Ivita v. Kyumbu
    [1984] KLR 44
Jurisdiction invoked
Inherent jurisdiction to reinstate a suit dismissed for non-compliance, invoking Article 50 and Article 159(2)(d) of the Constitution and the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (7)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Abdinoor Shurie v Halima Bundid [2020] KEELC 3354 (KLR)", Case Analysis (2020). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3354/eng@2020-02-27

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