Andrew Mbare v Attorney General & 11 others [2021] KEELC 45 (KLR)
The bottom line
#Kenya's Environment and Land Court reinstated a 16-year-old land suit despite a 10-month delay, but penalised the slow-moving plaintiff with costs and strict deadlines.
What this practically means
#Executive summary
#Key legal issues
#Whether the incoming advocates complied with Order 9 Rule 9 of the Civil Procedure Rules
The court found compliance on the basis of a consent dated 5.10.2020 filed with the notice of change of advocates; counsel was properly on record.
The court perused the record and found a consent signed between the firm of Duncan Muyondi & Co. Advocates and Momanyi Gichuki & Co. Advocates, dated 5th October 2020 and filed on 24th November 2020, mandating the incoming advocates to come on record. This satisfied Order 9 Rule 9(b), rendering the application competent despite the respondents' objection.
Whether there was an error apparent on the face of the record warranting review of the striking-out orders
No error apparent on the record; the court had specifically required paginated trial bundles, which the applicant had not filed, so the threshold for review under Section 80 and Order 45 was not met.
Although documents were on record, the court's directions specifically required trial bundles bound and paginated to facilitate smooth hearing given the many parties. The applicant conceded further documents remained unfiled. Applying the Patel test, the alleged error was not obvious and patent; hence the review application failed on that ground.
Whether the inordinate delay in seeking reinstatement was excusable
The delay of about 10 months was inordinate and the reasons (change of counsel and lack of finances) were insufficient, but reinstatement was nevertheless granted in the interest of justice.
The suit stood dismissed 14 days from 30.1.2020 and the application was filed on 24.11.2020, a delay of about 10 months. The applicant had prior notice of automatic dismissal and a duty to prosecute his suit diligently. The explanations were unconvincing, yet the court weighed the prejudice balance and the part-heard status of the suit.
Whether the suit should be reinstated in the exercise of discretion
Yes. Balancing prejudice, the applicant would suffer greater prejudice if the suit were not reinstated; dismissal being draconian, the suit was reinstated with strict timelines and self-executing dismissal conditions.
Relying on Nahashon Mwangi v Kenya Finance Bank, the court held dismissal is a last resort, and the right to be heard is constitutionally protected. The suit, filed in 2005 and part-heard with the applicant having testified, was at an advanced stage. The applicant was granted 60 days to file the trial bundle and 90 days to set the matter down for hearing, failing which the suit would stand dismissed.
Legal principles established
#- Discretion must be exercised judiciously, on legal principles and in the interest of doing real and substantial justice.
- Dismissal of a suit for want of prosecution is a last resort; where justice can still be served despite delay, a party should be heard.
- An error apparent on the face of the record must be obvious and patent, not one established by a long drawn process of reasoning.
- Change of advocate after judgment is effected upon a consent filed between outgoing and incoming advocates under Order 9 Rule 9.
Court orders
#- 1.The orders of 30.1.2020 and 7.7.2020 striking out the suit were reviewed/set aside and the suit reinstated
- 2.Applicant to file trial bundle within 60 days and set the matter down for hearing within 90 days from delivery of the ruling
- 3.If applicant fails to file trial bundle within 60 days, suit to proceed for hearing without the documents; if hearing not set down as ordered, suit to stand dismissed
- 4.Applicant to pay costs of KShs. 3,500 to each respondent within 90 days of delivery of the ruling
- Jurisdiction invoked
- Sections 1A, 1B and 3A of the Civil Procedure Act; Order 45 Rule 1 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Andrew Mbare v Attorney General & 11 others [2021] KEELC 45 (KLR)", Case Analysis (2021). Not stated in judgment (Embu ELC suit; application dated 5.10.2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/45/eng@2021-12-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.