Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCAllowed· [2021] KEELC 492 (KLR)

Jason Njuru Mwangi & another v Nyambura Mwangi & another [2021] KEELC 492 (KLR)

High Court of Kenya (as constituted at Murang'a - the judgment does not state the court division)
30 November 2021
2,008 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

#

The High Court in Murang'a reinstated a dismissed application, ruling that a lawyer's honest scheduling mistake, promptly corrected, justified setting aside dismissal orders.

What this practically means

#

Executive summary

#
This first-instance ruling by L. Gacheru, Judge, at Murang'a determined a Notice of Motion dated 14th June 2021 by the 1st and 2nd Defendants/Applicants, brought under Sections 1A, 1B and 3A of the Civil Procedure Act and Order 12 Rule 7 and Order 51 Rule 1 of the Civil Procedure Rules, seeking to set aside orders of 31st May 2021 dismissing their Notice of Motion dated 23rd March 2021 for non-attendance, and to reinstate that application. The Applicants explained through the supporting affidavit of Wanjiru Macharia, Advocate, that non-attendance was caused by an administrative mix-up in her office which led to the matter not being diarized, discovered only when the client enquired. The Plaintiffs/Respondents, through the Replying Affidavit of Jason Njuru Mwangi, opposed the application as incompetent, an abuse of process, and unsupported by plausible explanation for the delay. The Court framed a single issue: whether the dismissal orders of 31st May 2021 ought to be set aside. Applying the established discretion in Patel v E.A. Cargo Handling, Shah v Mbogo and related authorities, the Court found counsel's explanation credible and the mistake excusable, noted the reinstatement application was filed within 14 days, and held there was sufficient reason to set aside the dismissal. The application was allowed entirely with costs in the cause.

Key legal issues

#
01

Whether the administrative mix-up causing counsel's non-attendance on 31st May 2021 constituted sufficient reason to set aside the dismissal of the Notice of Motion dated 23rd March 2021

Holding

Yes. The dismissal orders were set aside and the Notice of Motion dated 23rd March 2021 reinstated, the Court holding the counsel's diarization error to be an excusable mistake and the application to have been filed without delay (within 14 days).

Reasoning

The Court has a wide discretion under Order 12 Rule 7 and Section 3A of the Civil Procedure Act to set aside dismissals on just terms, aimed at avoiding injustice from inadvertence or excusable mistake. Counsel's sworn explanation of an administrative mix-up in diarization was credible and unrebutted. The application for reinstatement was lodged within 14 days of dismissal, showing no delay. Citing Shah v Mbogo, the discretion is not meant for those who deliberately obstruct justice; here no fraud, evasion or intention to overreach was shown, so the mistake could be rectified by costs rather than depriving the party of a hearing on the merits.

p. 3

Legal principles established

#
  • The power to set aside an ex parte judgment or order is discretionary and its exercise is directed at doing justice to the parties.
  • Sufficient cause for setting aside must be rational, plausible, logical, convincing, reasonable and truthful.
  • An excusable mistake by counsel, promptly rectified, may amount to sufficient reason for setting aside dismissal orders.

Court orders

#
  1. 1.The Orders made on 31st May 2021 dismissing the Applicants' Notice of Motion dated 23rd March 2021 are set aside
  2. 2.The Notice of Motion Application dated 23rd March 2021 is reinstated
  3. 3.Costs of the application of 14th June 2021 are awarded to the Defendants/Applicants, costs to be in the cause

Authorities

#

Legislation

  • Civil Procedure ActSection 1A
  • Civil Procedure ActSection 1B
  • Civil Procedure ActSection 3A
  • Civil Procedure RulesOrder 12 Rule 7
  • Civil Procedure RulesOrder 51 Rule 1

Cases cited (7)

  • Patel vs E.A Cargo Handling Services Ltd
    (1974) EA 75
  • Shah vs Mbogo & Another
    (1967) EA 116
  • Haji Ahmed Sheikh t/a Hasa Hauliers vs. Highway Carriers Ltd
    (1982 – 88) 1 KAR 1184
  • Pithon Waweru Maina vs Thuku Mugiria
    Civil Appeal No. 27 of 1982 (unreported)
  • The Hon. Attorney General vs the Law Society of Kenya & Another
    Civil Appeal (Application) No. 133 of 2011 (ur)
  • Belinda Murai & Others vs Amos Wainaina
    [1979] eKLR
  • Philip Chemwolo & Another vs Augustine Kubende
    [1986] eKLR
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act; Order 12 Rule 7 and Order 51 Rule 1 of the Civil Procedure Rules

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Jason Njuru Mwangi & another v Nyambura Mwangi & another [2021] KEELC 492 (KLR)", Case Analysis (2021). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/492/eng@2021-11-30

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