Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCAllowedNotice of motion dated 18/2/2019 (suit number not stated in judgment)· [2020] KEELC 3952 (KLR)

Saida Mohammed v Airtel Kenya & another; Kenya Towers Limited (Interested Party) [2020] KEELC 3952 (KLR)

Environment and Land Court
22 January 2020
1,233 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

#

A Kenyan court reinstated a land case dismissed after the plaintiff missed a hearing, showing courts will revive suits when a genuine, documented excuse exists.

What this practically means

#

Executive summary

#
The plaintiff applicant moved the court by notice of motion dated 18/2/2019 seeking reinstatement of her suit, which had been dismissed on 22/11/2018 for non-attendance at a first hearing. She explained that she was indisposed on the hearing date, producing a signed medical document dated 24/11/18 recording diabetes, hypertension and swollen feet, and showed that counsel had communicated the predicament to the opposite side by email. The interested party opposed through grounds of opposition, contending that the medical document was unsigned, undated and illegible, that no new or compelling issue had been raised, that the application was filed out of time and was an abuse of process, and cited Bilha Ngonyo Isaac, Wendano Matuu and Shah v Mbogo. The defendant did not participate, having not been served. The court framed three issues: whether plausible grounds were advanced, whether triable issues existed, and whether there was delay. It found the medical document legible, signed and dated after the dismissal date, distinguished the cited authorities on their facts, and applied Shayono Timber on the court's judicious discretion to reinstate suits dismissed for non-attendance. It held that the suit, concerning a plot in Moyale town, raised triable issues given the sensitivity of land matters, and that the three-month delay was not inordinate. The application was allowed subject to conditions: filing of paginated bundles within 45 days, service within 15 days, automatic lapse on non-compliance, and the applicant to pay the costs of the application.

Key legal issues

#
01

Whether the plaintiff offered a plausible explanation for non-attendance

Holding

The medical document was signed and dated after the dismissal date, and counsel had communicated the predicament to the opposite side, so the plaintiff got the benefit of doubt.

Reasoning

The court scrutinised the medical document SM-1, found it legible, signed and dated 24/11/18, meaning it did not exist on the hearing date and counsel could not have presented it. Email communication to the opposing advocate corroborated the explanation. The court could not question the document's authenticity and gave the applicant the benefit of doubt.

p. 2
02

Whether the cited authorities were applicable

Holding

The authorities cited by the interested party were distinguishable on their facts.

Reasoning

In Bilha Ngonyo Isaac the plaintiff had a sloppy history of repeated non-attendance, whereas here the matter was listed for hearing for the first time. In Wendano Matuu the advocates gave no reason for taking out the matter, whereas here a reason was communicated. The cases were therefore distinguishable.

p. 2
03

Whether the suit raises triable issues

Holding

Yes; the claim concerns land, which is a sensitive and emotive subject meriting a hearing on the merits.

Reasoning

The plaintiff claims a plot in Moyale town. The court held that land disputes warrant determination on the merits, supporting reinstatement so the dispute can be heard rather than disposed of on procedural grounds.

p. 2
04

Whether there was inordinate delay in filing the reinstatement application

Holding

The 3-month delay was not inordinate.

Reasoning

Although the application was filed three months after dismissal and counsel was present on the dismissal date, the court held the delay was not inordinate, taking into account that the case was not part of the backlog and had been listed only once.

p. 2

Legal principles established

#
  • The court has a judicious discretion to reinstate a suit dismissed for non-attendance.
  • Substantive justice should be served through judicious exercise of discretion.

Court orders

#
  1. 1.Suit dismissed on 22/11/2018 reinstated
  2. 2.Parties to file their documents and statements of witnesses in a paginated bundle within 45 days and the matter listed for pre-trial conference
  3. 3.Applicant to serve the order upon the defendants within 15 days
  4. 4.Order allowing the application to automatically lapse upon non-compliance with clause 1 or 2
  5. 5.Applicant condemned to pay costs of the application

Authorities

#

Cases cited (5)

  • Bilha Ngonyo Isaac V Kembu Farm Ltd and another
    (2018) eKLR
  • Wendano Matuu Company Limited V Stephen Ndambuki Muli and 2 Others
    (2018) eKLR
  • Shah V Mbogo and Another
    (1967) EA 116
  • Shayono Timber Limited VS Kenya National Highway Authority
    (2018) eKLR
  • Mwangi S. Kaimenyi VS Attorney General and another
    (2014) eKLR
Jurisdiction invoked
Inherent discretion of the court to reinstate a suit dismissed for non-attendance

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Saida Mohammed v Airtel Kenya & another; Kenya Towers Limited (Interested Party) [2020] KEELC 3952 (KLR)", Case Analysis (2020). Notice of motion dated 18/2/2019 (suit number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3952/eng@2020-01-22

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