Ernest Njagi Muthara v Nderitu Wachira [2021] KEELC 444 (KLR)
The bottom line
#A Kenyan court reinstated a dismissed land case because the lawyer's office was locked in a rent dispute, but set a strict 30-day deadline to proceed.
What this practically means
#Executive summary
#Key legal issues
#Whether the Applicant established a satisfactory explanation for non-attendance justifying setting aside the dismissal order of 13/5/2019
Yes. The Applicant's explanation of the lock-out of counsel's offices due to a landlord-tenant dispute, resolved through BPRT and judicial review proceedings, offered a satisfactory explanation for failure to attend Court.
Counsel conceded the dismissal arose from his failure to attend, attributing it to a landlord locking his Thika office from 25/3/2019, the subject of BPRT Case No. 275 of 2020 and subsequent judicial review proceedings in which he prevailed. The court found this explanation satisfactory, holding the Applicant would suffer hardship from a cause he could not be blamed for, and applied the discretionary principles in Mbogo & Another v Shah.
Whether the delay of over two years in filing the reinstatement application was inordinate and inexcusable
The court implicitly found the delay excusable, accepting that access to the office was regained only in 2021 following the Thika JR determination.
The Respondents argued the Applicant was guilty of laches, having come to Court over two years after dismissal, and that the hearing notice of 8/5/2019 post-dated the alleged lock-out, showing the explanation was misleading. They cited Ronald Mackenzie v Damaris Kiarie. The court nonetheless held the explanation satisfactory and that the Applicant should not be denied the chance to agitate his case for reasons he cannot be blamed for.
Legal principles established
#- The Court's discretionary power to set aside a dismissal order should be exercised judiciously with the overriding objective of ensuring justice to all parties, to avoid injustice or hardship from accident, inadvertence or excusable mistake, but not to assist a litigant who deliberately obstructs or delays justice
- Where a suit has been dismissed, the Court may on application set aside or vary the judgment or order upon such terms as may be just
Court orders
#- 1.The dismissal orders issued on 13th May 2019 be and are hereby set aside
- 2.The Applicant is ordered to fix the application dated 3rd December 2018 for hearing within the next 30 days from the date hereof, in default its dismissal shall be maintained with no further orders
- 3.Costs shall be in favour of the Respondent
- Jurisdiction invoked
- Order 12 Rule 7 and Section 3A of the Civil Procedure Act; Order 51 Rule 15 Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ernest Njagi Muthara v Nderitu Wachira [2021] KEELC 444 (KLR)", Case Analysis (2021). ELC Application dated 3/5/2021 (arising from application dated 3rd December 2018, originally Nbi ELC No. 482 of 2013, transferred to Thika ELC on 26/7/2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/444/eng@2021-12-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.