Saida Mohammed v Airtel Kenya & another; Kenya Towers Limited (Interested Party) [2020] KEELC 3952 (KLR)
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
#Key legal issues
#Whether the plaintiff offered a plausible explanation for non-attendance
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.
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.
Whether the cited authorities were applicable
The authorities cited by the interested party were distinguishable on their facts.
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.
Whether the suit raises triable issues
Yes; the claim concerns land, which is a sensitive and emotive subject meriting a hearing on the merits.
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.
Whether there was inordinate delay in filing the reinstatement application
The 3-month delay was not inordinate.
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.
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.Suit dismissed on 22/11/2018 reinstated
- 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.Applicant to serve the order upon the defendants within 15 days
- 4.Order allowing the application to automatically lapse upon non-compliance with clause 1 or 2
- 5.Applicant condemned to pay costs of the application
- 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.