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ELCAllowedCivil Appeal No. 38 of 2019· [2021] KEELC 363 (KLR)

Pauline Jane Njerenga & another v Kahawa Sukari Limited & 2 others [2021] KEELC 363 (KLR)

Environment and Land Court
21 October 2021
EOE. O. OBAGA
1,246 words in judgment
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The bottom line

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Kenya's Environment and Land Court confirmed that a clerk's honest diary mistake should not cost land buyers their day in court—their dismissed case was reinstated.

What this practically means

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Executive summary

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The appellants had sued the 1st respondent in Milimani CMCC No. 2484 of 2018 seeking specific performance of sale agreements over two plots purchased at Kshs. 250,000 each. They paid a deposit of Kshs. 100,000; when they sought to pay the balance, they were asked to pay a penalty of Kshs. 100,000 per plot for late payment, refused, and the respondent resold the plots. Progress of the suit was delayed by doubts over magistrates' jurisdiction over land disputes. A hearing date fixed for 6th June 2018 was mistakenly diarized by counsel's clerk as 6th July 2018; the suit was dismissed for non-attendance. An application to set aside the dismissal and reinstate the suit, filed on 6th July 2018, was dismissed by the trial magistrate in a ruling delivered on 24th April 2019, principally because the case was old. On appeal, the Environment and Land Court held that the trial magistrate improperly exercised her discretion. Applying Shah v Mbogo and Philip Keipto Chemwolo v Augustine Kubede, the court found the non-attendance was due to an inadvertent, excusable mistake amply demonstrated by diary extracts, and that the appellants had been keen to prosecute their case. The appeal was allowed, the order dismissing the notice of motion dated 6th July 2018 was set aside, the motion was allowed, costs of the appeal and the motion were awarded to the appellants, and the lower court suit was directed to be heard expeditiously.

Key legal issues

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01

Whether the trial magistrate properly exercised her discretion in declining to set aside the dismissal of the suit for non-attendance

Holding

The trial magistrate improperly exercised her discretion by refusing to set aside the dismissal merely because the case was old, despite a demonstrated inadvertent diarization error.

Reasoning

The Appellants' advocate explained that his clerk mistakenly diarized the hearing date as 6th July 2018 instead of 6th June 2018, and annexed diary extracts supporting this. The application to set aside was filed on 6th July 2018, the date the advocate believed was the hearing date. The Appellants had shown diligence, including attempting to transfer the case during jurisdictional doubts. The magistrate's refusal rested solely on the case being old, which was an improper exercise of discretion.

p. 2

Legal principles established

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  • The discretion to set aside a dismissal or ex parte judgment is to be exercised to avoid injustice or hardship resulting from accidental, inadvertent or excusable mistake or error.

Court orders

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  1. 1.The order dismissing the Appellants' notice of motion dated 6th July 2018 is set aside
  2. 2.The Appellants' notice of motion dated 6th July 2018 is allowed
  3. 3.The Appellants shall have costs of the Appeal together with costs of the Notice of Motion
  4. 4.The hearing of the lower court case should be heard expeditiously

Authorities

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Cases cited (2)

  • Shah Vs Mbogo
    (1967) EA
  • Philip Keipto Chemwolo & Another Vs Augustine Kubede
    (1986) eKLR
On appeal from
Chief Magistrate's Court, Milimani
Milimani CMCC No. 2484 of 2018
Jurisdiction invoked
Appellate jurisdiction of the Environment and Land Court over appeals from subordinate courts in land matters

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Pauline Jane Njerenga & another v Kahawa Sukari Limited & 2 others [2021] KEELC 363 (KLR)", Case Analysis (2021). Civil Appeal No. 38 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/363/eng@2021-10-21

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