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ELCDismissed· [2020] KEELC 3411 (KLR)

Stanley Kigotho Miano v Job Kigotho Miano & another [2020] KEELC 3411 (KLR)

Environment and Land Court
7 February 2020
1,314 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The court refused to revive a land case dismissed after the owner and his lawyer missed the hearing, confirming litigants must personally track their cases.

What this practically means

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Executive summary

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The plaintiff, registered proprietor of KIINE/KIANGAI/3399, moved the court by Notice of Motion dated 13th November 2018 under Order 12 Rule 7, Order 51 Rule 1 CPR, Section 3A CPA and Article 159(2) of the Constitution, seeking review and setting aside of the orders of 4th October 2018 dismissing his suit for want of prosecution, reinstatement of the suit, and restoration of interim orders restraining interference with the suit property. He explained that he was out of the country from 22nd September to 8th October 2018 and that his previous advocates, Viola & Onyango Advocates, failed to attend the hearing under a mistaken belief that matters before the late Justice S. Mukunya would be allocated fresh dates. Both defendants opposed, contending that the plaintiff and his advocate knowingly failed to attend despite a hearing notice, that a litigant must be vigilant, and that the plaintiff never communicated his travel plans. The court held that the discretion to set aside a dismissal must be exercised judicially and on sound reasons. It noted the absence of any affidavit from the previous advocates explaining their non-attendance and inferred loss of interest in the suit. Applying Savings and Loans Limited v Susan Wanjiru Murithi, the court reiterated that a case belongs to the litigant, who must monitor its progress, and that engaging a new advocate is not a basis for setting aside dismissal. The application was dismissed with costs.

Key legal issues

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01

Whether the plaintiff's absence and that of his advocate justified reinstatement of the dismissed suit

Holding

No; the plaintiff failed to offer a reasonable explanation for the previous advocate's non-attendance, and litigants have a duty to follow up on their cases

Reasoning

The court noted the suit was fixed for hearing by Viola & Onyango Advocates but neither the plaintiff nor his advocate attended on 4th October 2018. No affidavit from the firm explained the failure, and the only inference was loss of interest. The court adopted the principle from Savings and Loans Limited v Susan Wanjiru Murithi that a case belongs to the litigant, who must pursue and monitor its prosecution, and that engaging a new advocate is not itself a ground for reinstatement.

p. 2

Legal principles established

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  • A case belongs to the litigant and not the advocate; the Court cannot set aside dismissal of a suit solely on the ground of counsel's mistake or failure to attend court
  • The discretionary power to set aside a dismissal must be exercised judicially and on sound reasons, not on nothing

Court orders

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  1. 1.The application dated 13th November 2018 is dismissed with costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 12 Rule 7
  • Civil Procedure RulesOrder 51 Rule 1
  • Civil Procedure ActSection 3A
  • Constitution of Kenya, 2010Article 159(2)

Cases cited (1)

  • Savings and Loans Limited Vs Susan Wanjiru Murithi
    Nairobi (Milimani) HCCC No. 397/2002
Jurisdiction invoked
Order 12 Rule 7, Order 51 Rule 1 CPR, Section 3A CPA, Article 159(2) of the Constitution of Kenya, 2010

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, "Stanley Kigotho Miano v Job Kigotho Miano & another [2020] KEELC 3411 (KLR)", Case Analysis (2020). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3411/eng@2020-02-07

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