Ideal Locations Ltd v Deacons (E.A) Ltd [2020] KEELC 3880 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether counsel's illness and mistaken belief about the hearing court justified reinstatement
The court rejected the explanations, finding the illness claim unsupported and the confusion about the hearing court untenable since directions had been given in counsel's presence.
Counsel exhibited only a photograph of over-the-counter cough medication without dates or his name, and hospital tests taken later. He admitted working mornings and attending other courts, so was not incapacitated. Directions by Yano J had specified the matter would be before this court, in counsel's presence. The court concluded counsel was covering up his own tardiness and found the reasons unconvincing.
Whether reinstatement could nonetheless be granted as a condition-laden exercise of discretion
Reinstatement was allowed in the court's own discretion to preserve the defendant's right to be heard, conditional on payment of throwaway costs and a rent deposit covering the pendency of the application.
Though unpersuaded by the explanation, the court declined to shut the defendant out of the seat of justice, weighing the right to be heard against the plaintiff's prejudice. It therefore imposed conditions: throwaway costs of Kshs. 15,000/= and a court deposit of accumulated rent of Kshs. 1,409,978.10/= for September 2019 to January 2020, both payable within 14 days, failing which the dismissal stands.
Legal principles established
#- A party's dismissal for non-attendance may be reinstated in the court's discretion to preserve the right to be heard, even where the explanation offered is not believed, subject to appropriate conditions.
Court orders
#- 1.The application to reinstate was allowed in the court's own discretion, not on the reasons given by counsel
- 2.The defendant to pay throwaway costs to the plaintiff assessed at Kshs. 15,000/=
- 3.The defendant to deposit in court rent from September 2019 to January 2020, totalling Kshs. 1,409,978.10/=
- 4.The throwaway costs and rent deposit to be settled within 14 days, failing which the order dismissing the preliminary objection and the motion of 25 March 2019 will stand
- 5.If the monies are paid within 14 days, the application and preliminary objection to be reinstated for hearing and time extended to Mr. Ngonze to file submissions on the plaintiff's application of 12 March 2019
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court; inherent discretion to reinstate an application dismissed for non-attendance/non-prosecution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ideal Locations Ltd v Deacons (E.A) Ltd [2020] KEELC 3880 (KLR)", Case Analysis (2020). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3880/eng@2020-01-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.