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ELCAllowedNot stated in the judgment as provided· [2020] KEELC 3956 (KLR)

Patrick Mwaura Gichuiya v Mary Muirigo Wainaina [2020] KEELC 3956 (KLR)

Environment and Land Court
16 January 2020
JKJ G Kemei
616 words in judgment
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The bottom line

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Kenya's Environment and Land Court reinstated a dismissed land case, ruling that a lawyer's mistake shouldn't cost a client their day in court.

What this practically means

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Executive summary

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The Applicant sought reinstatement of his Notice of Motion dated 27/8/2019, which the court had dismissed on 18/11/2019 for non-attendance by the Applicant and his counsel. Counsel, Victor Ngechu Maina, deponed that he had four matters listed that day and was delayed by a road diversion approaching Murang'a Town, and argued that the mistake of counsel should not be visited upon the client. He invoked Article 159 of the Constitution and Section 3 of the ELC Act, and relied on Philip & Anor v Augustine Kibede on the court's broad equity approach to blunders. The Respondent, though served, did not oppose the application. The court held that the power to set aside dismissal for non-attendance is discretionary under Order 12 Rule 7 of the Civil Procedure Rules, that the application was brought without delay, and that the Respondent would suffer no prejudice if the matter were heard on its merits. Guided by the constitutional dictate of substantive justice, the court granted the application, conditional upon the reinstated Notice of Motion being listed for hearing within 30 days, failing which it would stand dismissed with no further orders. Costs were awarded to the Respondent, to be met by the Applicant. Judgment delivered at Murang'a on 16 January 2020 by J G Kemei, Judge.

Key legal issues

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01

Whether dismissal for non-attendance ought to be set aside

Holding

The dismissal was set aside on discretionary grounds, the court guided by Article 159's dictate of substantive justice, absence of delay and absence of prejudice to the Respondent

Reasoning

The court found the advocate's late arrival was occasioned by a road diversion and amounted to a blunder not attributable to the client. The application was brought without delay, was unopposed, and the Respondent would suffer no prejudice. Exercising the discretion under Order 12 Rule 7 and guided by Article 159, the court reinstated the application but imposed a 30-day hearing condition.

p. 1

Legal principles established

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  • The power to set aside an order dismissing a suit for non-attendance is a discretionary power vested in the trial court under Order 12 Rule 7 of the Civil Procedure Rules
  • A mistake or blunder of counsel should not ordinarily be visited upon the client, absent fraud or intention to overreach

Court orders

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  1. 1.The application to reinstate is granted and the Notice of Motion dated 27/8/19 is reinstated
  2. 2.The reinstated Notice of Motion dated 27/8/19 to be listed for hearing within 30 days, in default of which it stands dismissed with no further orders
  3. 3.Costs of the application to be met by the Applicant in favour of the Respondent

Authorities

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Legislation

  • Constitution of KenyaArticle 159
  • Environment and Land Court ActSection 3
  • Civil Procedure RulesOrder 12 Rule 7

Cases cited (1)

  • Philip & Anor Vs Augustine Kibede
    (1982-88) KLR 103
Jurisdiction invoked
Article 159 of the Constitution read with Section 3 of the ELC Act; Order 12 Rule 7 of 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 (1)

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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, "Patrick Mwaura Gichuiya v Mary Muirigo Wainaina [2020] KEELC 3956 (KLR)", Case Analysis (2020). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3956/eng@2020-01-16

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